C-241/91

(e) The emergence of a new product for which there exists a substantial potential demand from consumers I - 773 (f) Use of a dominant position on one market in order to retain for itself a derivative market I - 776 (g) The question of the existence of a discriminatory licensing policy or unreason­ able licensing terms I - 779 (h) The question whether programme listings are works meriting protection I - 780 (i) The question whether the refusals to grant licences were justified I - 783 (j) The further consequences of the judgment of the Court of Justice I-785

E — The question whether the Court of First Instance wrongly failed to take into con­ sideration the Berne Convention I - 787

F — The question of infringement of Article 3 of Regulation No 17 I-794

G — The question whether the Court of First Instance defined the relevant product mar­ ket and applied the concept of a dominant position incorrectly I - 795

H — The question whether the Court of First Instance misconstrued the concept of effects on trade between Member States I - 799

I — The question of infringement of Article 190 of the Treaty I - 803

5. TV Times contained the weekly pro­ 1 — Commission Decision 89/205/EEC relating to a proceeding under Article 86 of the EEC Treaty (IV/31.851 —Magill TV gramme listings for ITV and Channel Four Guide/ITP, BBC and RTE) (OJ 1989 L 78, p. 43). broadcast by television companies franchised 2 — Case T-69/89 RTE v Commission [1991] ECR 11-485 and Case T-76/89 ITP Limited v Commission [1991] ECR II-575. by the Independent Broadcasting Authority

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7. In 1985 the Irish publisher Magill TV Guide Ltd ('Magill') began to publish a weeldy paper in Ireland and Northern Ire­ land containing information on forthcoming 6. Unlike in the other EC Member States, television programmes. At first the paper on the market in Ireland and Northern Ire­ only contained information on the weekend land there was no television guide containing programmes of RTE, BBC, ITV and Chan­ all weeldy programme listings for the chan­ nel Four and highlights from the week's pro­ nels which all or most television viewers grammes. When in May 1986 an edition of could receive ('comprehensive weekly televi­ Magill TV Guide appeared containing all the sion guides'). The reason lay in the licensing weeldy listings for all television channels that could be received in the area, an Irish court, in response to an application from RTE, BBC and ITV, issued an interim injunction 3 — The IBA is a public corporation established in order to pro­ vide independent television and radio services as a public ser­ restraining Magill from publishing the vice in the United Kingdom, the Isle of Man and the Chan­ nel Islands additional to that of the BBC. The IBA awards weeldy programme listings of those under­ contracts to private undertakings to supply programmes for takings on the grounds that such publication the ITV television channel. Channel Four is broadcast by a subsidiary of the IBA. infringed their copyright. That decision was

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upheld by a judgment of the High Court of Accordingly, in Article 2 of the decision the 26 July 1989. Commission required ITP, BBC and RTE to bring the infringement of Article 86 to an end:

4 — In that judgment the High Court held that programme list­ ings are copyright as literary works and compilations under Irish law. The relevant passages from the judgment are cited in paragraph 10 of the RTE judgment and paragraph 7 of the 9. ITP, BBC and RTE lodged applications ITP judgment. Since the High Court refers to 'weekly pro­ gramme schedules published in RTE Guide' and in TV for the annulment of the Commission's deci­ Times respectively mere may at first sight be some doubt sion to the Court of Justice. By order of whether tne High Court in its judgment really adopted a position on the copyright protection of all the material sent 11 May 1989 the President of the Court of on request by RTE and ITP, that is in addition to the pro­ gramme listings themselves, also programme summaries and Justice suspended the operation of the Com­ so forth. However, Magill published only the actual pro­ mission's decision in so far as it obliged the gramme listings and has stated that it carried out itself the necessary literary and research work and prepared any com­ applicants to permit reproduction of their ments on programmes. It may therefore be assumed that in 6 its judgment tne High Court held that the actual programme programme listings. listings, that is lists with information regarding the title, channel, date and time, enjoy copyright protection under Irish law.

5 — Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty 6 — Joined Cases C-76/89, C-77/89 and C-91/89 R [1989] ECR (OJ, English Special Edition 1959-1962, p. 87). 1141, paragraph 20.

By order of 6 July 1989 the Court of Justice gave Magill leave to intervene in support of the form of order sought by the Commission and by order of 25 March 1992 gave Intellec­ 11. Copyright is of fundamental importance tual Property Owners Inc. (IPO) leave to both for the individual owner of the right intervene in support of the forms of order and for society. The Member States have sought by the appellants. By order of entered into international commitments to 21 April 1993 the cases were joined for the give copyright owners sufficient protection purposes of the oral procedure. in order to ensure an appropriate framework for their creative efforts and in their copy­ right legislation have given copyright owners the exclusive right to exploit the protected work. In other words copyright laws give copyright owners the right to restrict compe- tition. 10. For the sake of completeness it should be noted that new rules came into force in 8 the United Kingdom on 1 March 1991, under which broadcasting organizations are obliged to license the reproduction of their programme listings. BBC and ITP have each begun to market their own comprehensive 12. However those laws do not confer unre­ weekly television guides. The Irish legisla­ stricted exclusive rights on copyright own­ tion has not been amended. However, RTE ers. The Berne Convention for the protec­ has obtained licences from BBC and ITP tion of literary and artistic works, as last with a view to marketing a comprehensive revised at Paris on 24 July 1971, envisages weekly television guide and has given and accepts certain limits on the exclusive 9 licences for its own programme listings. right and such limits are indeed contained in The three television guides RTE Guide, the copyright laws of the Member States. Radio Times and TV Times therefore now The limits may consist of provisions confer­ ring a limited right to free exploitation of the protected work or 'compulsory licences' 7 — Sec Case T-70/89 BBC v Commission [1991] ECR 11-535. which confer a right to make a certain use of 8 — Section 176 of the United Kingdom Broadcasting Act 1990. the work on payment of a royalty. A charac­ 9 — RTE lias stated that it gave public notice of its new licensing teristic feature of compulsory licences in the policy but that BBC and ITP were the only parties to SCCK and obtain licences. field of copyright is that permission to make

13. The copyright laws of the Member States have thus duly balanced the various interests 11 — The legal position in the Member States would appear to be that must be protected by society — includ­ that the competition authorities cannot impose compulsory ing on the one hand the protection of the licences in respect of copyright under French, Irish, Italian and Portuguese law while the issue has not been resolved interests of the copyright owner, and on the under German, Belgian, Dutch, Luxembourg and Danish 10 law. The Spanish competition authorities have relied on other undistorted competition. The natural competition provisions to introduce a general obligation for TV broadcasting organizations which have exclusive rights consequence of that is that compulsory to transmit certain sporting events to license retransmission. licences under competition law, that is As mentioned above, the legal position in the United King­ dom following the adoption of the Broadcasting Act 1990, licences which undertakings are required to which amends the Copyright, Designs and Patents Act 1988, is that, taking account of competition factors and grant by competition authorities on the basis after a procedure involving the United Kingdom competi­ of competition rules, are practically without tion authorities, copyright may be endorsed by the compe­ tent Minister with a licensing clause which signifies that the precedent in the Member States in the field owner cannot refuse a licence to interested parties who sat­ isfy any prescribed conditions. Apart from that, competi­ of copyright. In principle, where copyright tion factors are not relevant for compulsory licences stem­ ming from the copyright rules. By way of comparison, the position under patent law appears to be that in certain Member States, such as Spain, Belgium and Germany, the competition authorities may in 10 — It must not be forgotten that to a certain extent copyright irinciple impose compulsory licences but there is no case- law — like other intellectual property rights —also serves f law on the issue whereas no such possibility exists in other to promote competition. That was, in particular, stressed by Member States, such as France, Ireland, Italy and Portugal. the Commission in its comments in connection with the Only in the United Kingdom have the competition author­ adoption of its proposal for a Council directive on legal ities expressly been given a role, namely in connection with protection of computer programmes (OJ 1989 C 91, p . 16) the abovementioned licensing clause, while the final deci­ in which it pointed out that copyright represented an incen­ sion is still taken by the patent authorities. In certain other tive for the investment of intellectual and economic Member States, such as Germany, Ireland and the Nether­ resources and thus helped to promote technical develop­ lands, the patent authorities may take account of competi­ ment in the interests of society. See, as regards trade marks, tion factors in granting compulsory licences but that is not the judgment of the Court of Justice in Case C-10/89 HAG possible in other Member States, such as France and Portu­ GF [1990] ECR I-3711, paragraph 13. gal.

16. But that does not necessarily mean that that result which is reasonable in this 19. Finally, IPO claims that the Court of instance can be achieved by means of deci­ First Instance defined the relevant product sions adopted by the Commission under market and applied the concept of a domi- Article 86 of the Treaty. It is possible that that result can be achieved only by rules adopted by the national legislature, as hap­ pened in the United Kingdom, or by rules 12 — The Commission refers in this respect to the judgment of the Court of Justice in Case C-30/91 P Lestelle v Commis- adopted by the Community legislature. sion [1992] ECR I-3755.

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20. The Commission argues, and its conten­ tion must be accepted, that RTE and ITP cannot, in their replies, introduce new pleas in law not set out in their appeals (see Article 23. Article 93(4) of the Rules of Procedure 118 in conjunction with Article 42(2) of the of the Court of Justice provides that an inter­ Rules of Procedure of the Court of Justice). vener must accept the case as he finds it at Matters not expressly appealed against must the time of his intervention. However, that be relied on by the Court of Justice even if it provision is not to be interpreted as meaning is giving final judgment in the case pursuant that a party intervening at first instance is to the first paragraph of Article 54 of the precluded from raising pleas in law that have Statute. not been put forward by the party in sup­ port of whom he is intervening. The Court has held that such an interpretation would deprive the intervention procedure of all meaning (see the judgments in Steenkolen- 13 14 mijnen and in SNUPAT ).

21. Noting that RTE and ITP did not appeal against the judgments of the Court of First Instance on those two points, the Commis­ sion claims that those factors are not within the scope of the appeals and that IPO cannot 24. Article 118 of the Rules of Procedure therefore raise those pleas in law either. provides that, subject to certain provisions, Article 93 applies also to the procedure before the Court of Justice on appeal from a decision of the Court of First Instance. Since

22. An intervener can only intervene in sup­ 13 — Case 30/59 Steenkolenmijnen v High Authority [1961] ECR port of the submissions of one of the parties 1, at p. 18. 14 — Joined Cases 42/59 and 49/59 SNUPAT v High Authority (see the third paragraph of Article 37 of the [1961] ECR 53.

25. In its decision the Commission found that the refusals by ITP and RTE to grant licences constituted an abuse of their domi­ nant positions. That finding was upheld by 27. In a number of judgments concerning the Court of First Instance. In its judgments Articles 30 and 36 of the Treaty the Court of the Court of First Instance took as its start­ Justice has considered the balancing of the ing point the case-law of the Court of Justice concern for free movement of goods on the concerning the relationship between the one hand and that of protecting intellectual Treaty rules on the free movement of goods property rights on the other. The Court and intellectual property rights based on weighs up those interests within the frame­ national law and accordingly the concepts of work of its finding that Article 36 only the specific subject-matter of copyright and admits derogation from the fundamental its essential function formed an important principle of the free movement of goods part of its reasoning. within the common market to the extent to which they are justified for the purpose of

28. The application of the concept of the 31. In the light of the case-law of the Court specific subject-matter is an expression of the of Justice that result is correct. reasoning that for each intellectual property right it is possible to identify a number of core rights which the owner of that right enjoys under national law and whose exer­ cise is not affected by the Treaty rules. 18 In its judgment in Consten and Grundig the Court of Justice ruled on the compatibil­ ity with Article 85 of the Treaty, which pro­ hibits anti-competitive agreements, of an exercise of national trade mark rights. The Court took as its starting point Article 29. The question is whether the starting 222 of the Treaty which provides: 'This point for the balancing, pursuant to Article Treaty shall in no way prejudice the rules in 86 of the Treaty, of the concern for undis- Member States governing the system of torted competition on the one hand and that property ownership'; it then drew a distinc­ of protecting intellectual property rights on tion between the existence of trade mark the other may likewise be the determination rights, which are not affected by Article 85, of what constitutes the specific subject- and the exercise of those rights, which is lim­ matter of that intellectual property right. ited to the extent necessary to give effect to the prohibition under Article 85. The same reasoning in a slightly different formulation was put forward in the judgment in Parke,

30. In its judgments the Court of First 17 — However, the Court of First Instance's reasoning on that

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Davis which related to both Articles 85 and property right in question (see in particular 86. its judgment in Volvo v Veng which con­ 21 cerned Article 86 of the Treaty).

21 applying that distinction. An exercise of right and the essential rights of the copyright 24 rights that falls within the specific subject- proprietor. matter of an intellectual property right will relate to its existence. In other words the dis tinction between the existence and the exer cise of rights and the application of the con cept of the specific subject-matter are (b) The specific subject-matter of copyright basically expressions of the same conceptual approach. Accordingly I consider that the distinction between the existence and exer cise of rights has no independent significance for resolving specific questions of delimita

[1990] ECR I-3711 and compare the Opinion of Advocate of copyright (the respective paragraphs in the RTE judg General Jacobs in that case, point 11. ment arc 69, 70 and 74).

34. It is common ground that the exclusive right to reproduce the protected work forms part of the specific subject-matter of copy­ right. 37. There is therefore no conflict between finding that the specific subject-matter of copyright includes the exclusive right to reproduce the work and its corollary, the right of first marketing and holding that the essential function of copyright is to protect 35. RTE, ITP and IPO have criticized the the moral rights in the work and ensure a judgments of the Court of First Instance for reward for creative effort. stating that the 'essential function' of copy­ right is 'to protect the moral rights in the work and ensure a reward for the creative 26 effort' (paragraph 71 of the RTE judgment; paragraph 56 of the ITP judgment). They claim that the Court of First Instance has (c) The question whether Article 86 of the thus departed from the definition of the spe­ Treaty may be applied to the exercise of cific subject-matter of copyright and has rights falling within the specific subject- 'omitted' the exclusive right to reproduce the matter of copyright work and its corollary, the right of first mar­ keting.

38. It is plain that a corollary of an exclusive 36. That criticism of the judgments of the right to reproduce the protected work is the Court of First Instance is not justified. As right to refuse licences. Accordingly the right the Commission has stated, the concept of to refuse licences forms part of the specific 27 the essential function is different from that subject-matter of copyright. That is borne of the specific subject-matter. The two con­ out by the judgment of the Court in Volvo v cepts serve different purposes. In its case-law Veng, 29 which concerned products protected by registered designs. The Court held:

39. In these cases it is thus not disputed that the exercise of the exclusive right of repro­ duction by refusing to grant licences does not in itself constitute an abuse of a domi­ nant position. The Commission has stressed 42. The Commission contends that an exer­ that it agrees. cise of rights falling within the specific subject-matter of copyright can be contrary to Article 86 where that exercise takes place under special circumstances. The Commis­ sion stresses that the specific subject-matter of copyright is not immune and that it can­ not be precluded from talcing action against 40. The central and fundamental issue in abuse of a dominant position merely because these cases is whether, and if so under what the means for that abuse is an intellectual circumstances, a refusal to license — that is property right. the exercise of a right falling within the spe­ cific subject-matter of copyright — notwith­ standing the abovementioned premiss may constitute an abuse of a dominant position. The question is whether there may exist such special circumstances in connection with a 43. The Commission points out in particular refusal to license that it can no longer be that while it is logical to take as the starting regarded as a refusal to license in itself. If point the case-law of the Court of Justice on Article 86 can apply where the dominant Articles 30 and 36 of the Treaty, that case- undertaking has done no more than refuse to law is not conclusive for an analysis under grant licences, but where there were special Article 86 since it is important to bear in circumstances in connection with the refusal mind that those provisions have different to license, the position will be that the functions and objectives. Even if the national infringement of Article 86 can be terminated legislation on which the intellectual property only by granting licences. A requirement to right in question is based is compatible with grant licences signifies, as the Court ruled in Article 36, that does not rule out the possi­ Volvo vVeng, interference in rights forming bility of Article 86 being applicable to an

exercise of those rights. Articles 30 and rules, it is natural that acceptance that it is 36 are directed to the Member States and possible on the basis of Article 86 to inter­ serve to determine whether national provi­ fere with rights forming part of the specific sions restrict the movement of goods. Article subject-matter at first sight gives rise to 86 is directed to dominant undertakings problems. which, in their commercial behaviour, are subject to higher standards than other under­ takings. The analyses and criteria to be applied are not the same in relation to Arti­ cles 30 and 36 and in relation to Article 86. An analysis under Articles 30 and 36 is gen­ 46. However, that reaction seems primarily eral and applies to every case subject to the to stem from a misconception of the Court rules in question while an analysis under of Justice's application of the concept of spe­ Article 86 only relates to a specific case in cific subject-matter in its case-law on Arti­ respect of which account is taken of all the cles 30 and 36. A definition of the specific special circumstances surrounding it. subject-matter laid down by the Court is not absolute in the sense that any exercise of rights falling within the specific subject- matter is then immune from challenge under Article 30. The Court's case-law shows first that questions may arise as to whether or not certain rights — which are new in so far as they are not certainly covered by the Court's 44. As stated in section (a) the Court of Jus­ definition of specific subject-matter — are to tice's case-law shows that the starting point be regarded as falling within that defini­ for consideration of the exercise of intellec­ tion. 30 Second, the Court's case-law also tual property rights with respect to Articles shows — and this is most significant in the 30 and 36 of the Treaty and with respect to present context — that questions may arise Article 86 of the Treaty is the same, namely as to whether a right which is in principle that it is possible to identify a number of within the scope of the specific subject- core rights which the owner of an intellec­ matter has been exercised under such special tual property right enjoys under national law circumstances that that exercise creates an and whose exercise is not affected by the unacceptable obstacle to the free movement Treaty rules on the free movement of goods of goods and for that reason cannot be and undistorted competition. The question is regarded as being covered by the specific whether a more precise formulation of that subject-matter of the intellectual property starting point is necessary in the sense that right. an exercise of rights may in special circum­ stances conflict with the Treaty rules.

and may be necessary, to specify whether a that the proprietor of a right is entitled to right is covered by the specific subject- prevent an importer of a trade-marked prod­ matter even where it is exercised under spe­ uct, following repackaging of that product, cific circumstances. In a number of cases the from affixing the trade mark to the new Court has indicated that it may be necessary packaging without the authorization of the to assess whether conduct — exercise of a proprietor (paragraph 8). However, such an right covered by the specific subject-matter exercise of rights falling within the specific — must be denied protection because it is to subject-matter may constitute a disguised be regarded as an improper exercise of a restriction on trade which is contrary to the right since it may lead to artificial partition­ second sentence of Article 36 if it is estab­ ing of the common market. lished that the use of the trade mark right by the proprietor, having regard to the market­ ing system which he has adopted, for exam­ ple where the same product is marketed in different packaging in different Member States, will contribute to the artificial parti­ tioning of the market between the Member 48. In a few instances the Court has formu­ States (paragraphs 9 and 10). In those cir­ lated its judgments in such a way that such cumstances and provided that the essential specification appears as an actual exception function of the trade mark as a guarantee of from — an interference with — a right cov- the origin of the goods is not jeopardized in ered by the specific subject-matter of the so far as the repackaging has not affected the intellectual property right. But generally the original condition of the product, it will Court approaches such situations as a matter be contrary to Article 36 for the proprietor of specifying whether a right is covered by to exercise his right to prevent imports the specific subject-matter, even when it is of repackaged goods (paragraphs 10, 11 exercised tinder specified circumstances. and 12). 32

son other than the owner of the right to the starting point by stating that the proprietor design in a Member State could be allowed of an intellectual property right may not rely to market in that State a product which is on his rights under the legislation of a Mem­ identical in appearance to the protected ber State in order to oppose the importation design' (paragraph 22). The Court pointed or marketing of a product which has law­ out that restrictions on the free movement of fully been marketed in another Member goods must be justified on grounds of the State by, or with the consent of, the propri­ protection of intellectual property and must etor of the right or a person legally or eco­ not, in particular, constitute disguised nomically dependent on the proprietor of restrictions on trade within the meaning of the exclusive right (principle of exhaustion of 35 the second sentence of Article 36 and further rights). held:

mon market. The exercise of industrial and ond sentence of Article 36 of the Treaty under which obsta commercial property rights conferred by cles to trade which are otherwise justified must not consti tute a means of arbitrary discrimination or a disguised national legislation must consequently be restriction on trade between Member States. That may explain why the case-law of the Court is sometimes — but restricted as far as is necessary for that rec in my view not always appropriately — summarized as say ing that the exercise of a right within the specific subject- onciliation' (paragraph 24, emphasis added). matter may be incompatible with Articles 30 and 36 of the Treaty if the right is abused. For example, in the Opinion of Advocate General Mischo in Case 53/87 CICRA v Renault [1988] ECR 6039, at point 20(c) it is stated with reference to the judgment in Kenrkoop v Nancy Kean Gifts: 'where the proprietor of a design "abuses" his right to prevent imports (a right which stems inherently from the specific purpose of registration of the design), he cannot benefit On that basis and by reference to its consis from the exception to the principle of free movement of goods laid down in Article 36'. See also the Opinion of tent case-law, the Court further specified its Advocate General Tesauro in Case C-317/91 Deutsche Renault, [1993] I-6227, point 8, in which he states: 'in fact it is clear from the case-law that Articles 30 and 36 oppose only a clearly abusive exercise of the right in question' and refers to the principle of exhaustion of rights as a principal example of that case-law. In its judgment in that case the 34 — The Court of First Instance refers in its judgments to the Court held that 'the function of this provision, which is judgment of the Court of Justice in Kenrkoop v Nancy designed to prevent restrictions on trade based on the Kean Gifts. However in its indirect quotation from the grounds mentioned in the first sentence of Article 36 from above paragraph the Court of First Instance here adds — as being diverted from their proper purpose and used in such a far as can De seen on its own account — 'or pervert the way as either to create discrimination in respect of goods rules governing the competition within the Community' originating in other Member States or indirectly to protect

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principle within the specific subject-matter if in by undertakings in a dominant position. those rights are exercised in special circum­ In other words a number of circumstances 36 stances. may only be of significance if the right is being exercised by a dominant undertaking. That means that a specific exercise of rights which in principle are within the specific subject-matter may be incompatible with Article 86 even if the same conduct is accept­ able with respect to Articles 30 and 36.

38 Many of their rights under national intellectual forms of commercial conduct will, in fact, property laws as exceptions from — interfer only affect the proper functioning of the ence with — the specific subject-matter of common market in so far as they are engaged the intellectual property right in question and not as specifying the scope of the spe cific subject-matter, as in an Articles 30 and 36 analysis. It should be affirmed that in 36 — It may be considered whether any significance attaches to principle the concept of the specific subject- the fact that Article 86 does not contain a provision corre sponding to the second sentence of Article 36.

I consider that that view must be rejected since Article 86 is in itself a rule concerning abuse of rights and for undertakings which are not in a domi this is borne out, as will be seen below, by the Court's case- nant position to exercise the rights in ques law. tion since they are within the specific 37 — It is clear that Articles 30 and 36 of the Treaty arc addressed to the Member States and lay down requirements regarding subject-matter of the intellectual property the content of their laws. But in fact judgments of the kind referred to above serve to prohibit the misuse by undertak right concerned and since the special circum ings of the rights they have under national laws which arc stances in question are significant for the otherwise regarded as compatible with Articles 30 and 36 of

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proper functioning of the common market could not in itself constitute an abuse of a only if the rights are exercised by a dominant dominant position and stated: undertaking.

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43 — The Commission claims that the second example shows that it is possible to interfere with the specific subject- matter. The Commission is thus assimilating the setting of unreasonably high prices for products produced under a registered design with the levying of unreasonably high 61. I consider that in fact, as the Commis­ royalties. I do not agree that those two situations can be assimilated. In the first case the infringement of Article sion has argued, unreasonable royalties and a 86 docs not depend on whether the products are protected by a registered design. Only in the second case would application of Article 86 signify interference with the spe­ cific subject-matter (see below). 44 — See in this regard Case 19/84 Pljarmon v Hoechst [1985] 45 — Case 402/85 [1987] ECR 1747. ECR 2281, paragraph 25. 46 — Case 395/87 [1989] ECR 2521.

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48 — See in this connection paragraph 14 of Tournier where the Court held: 'As regards the abusive or discriminatory nature of the rate of royalty, that rate, which is fixed inde­ pendently by Sacem, must be appraised in relation to the competition rules contained in Articles 85 and 86. The rate of royalty is not a matter to be taken into account in con­ 47 — See Case 62/79 Coditei [1980] ECR 881, paragraph 14, and sidering the compatibility of the national legislation in Case 262/81 Coditei [1982] ECR 3381, paragraph 12, in question with Articles 30 and 59 of the Treaty'. See also which the Court of Justice held that the right of the owner paragraphs 18 and 19 of Basset. Finally, for further support of the copyright in a 61m to demand a fee for any public tor that result, see Case 102/77 Hoffmann-La Roche [1978] showing of that film is part of the essential function of ECR 1139, paragraph 16, and the case-law of the Court of copyright in that Ižind of literary and artistic work. The use Justice on Article 85, in particular Joined Cases 56/64 and of the concept of essential function in that context is not 58/64 Consten and Grundig [1966] ECR 299, at pp . 345-6, correct in my view. The question is one of delimiting the where the Court held: 'Article 36, which limits the scope of rights that are legally conferred on the proprietor of copy­ the rules on the liberalization of trade contained in Title I, right, that is of defining the specific subject-matter of copy­ Chapter 2, of the Treaty, cannot limit the field of applica­ right. The essential function of copyright is to reward the tion of Article 85', Case 24/67 Parke Davis [1968] ECR proprietor's creative effort. As regards the definition and 55 and Case 262/81 Coditei [1982] ECR 3381, paragraphs application of that concept, see section (d) below. 19 and 20.

66. The Court of First Instance states that the exercise of the exclusive right to repro­ duce a protected work constitutes an abuse when in the light of the details of each indi- vidual case, it is apparent that that right is exercised in such ways and circumstances as in fact to pursue an aim manifestly contrary 'However, while it is plain that the exercise to the objectives of Article 86. of the exclusive right to reproduce a pro­ tected work 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 Arti­ cle 86. In that event, the copyright is no 67. The Court of First Instance seems, longer exercised in a manner which corre­ wrongly in my view, to take as its premiss sponds to its essential function, within the that the exercise of copyright will constitute meaning of Article 36 of the Treaty, which is an abuse of a dominant position to the extent to protect the moral rights in the work and that it is found that that exercise pursues a ensure a reward for the creative effort, while manifestly anti-competitive aim. As ITP in respecting the aims of, in particular, Article particular has pointed out, the aim of copy­ 86. ... In that case, the primacy of Commu­ right is precisely to give the proprietor the nity law, particularly as regards principles as possibility of restricting competition and fundamental as those of the free movement that possibility must also be afforded to a of goods and freedom of competition, pre­ dominant undertaking. The Court of First vails over any use of a rule of national intel­ Instance's premiss seems to be that the aim lectual property law in a manner contrary to pursued by Article 86 outweighs the aim of those principles' (paragraph 71 of the RTE copyright. As I understand the case-law of judgment; paragraph 56 of the ITP judg­ the Court of Justice, the contrary premiss is ment). the right one.

69. The Court of First Instance states that the essential function of copyright is to protect the moral rights in the work and ensure a 72. ITP has claimed that to define the essen­ reward for the creative effort while respecting tial function of copyright as including the the aims of in particular, Article 86. protection of moral rights would signify that assignees of the creator, like ITP, could not avail themselves of such rights which are inalienable and thus could not exercise the right of exclusive reproduction. At the hear­ ing, however, ITP clarified its view by stat­ ing that it can accept that the aim of copy­ right is to protect moral interests provided 70. The Court of First Instance here seems that the economic and commercial interests to be reading the aim pursued by Article 86 into a definition of the essential function of copyright. That cannot be correct. The concept of the essential function is a concept 49 — Paragraph 71 of the RTE judgment and paragraph 56 of the ITP judgment. The Court of First Instance referred in par­ of Community law but it is based on the ticular to the case-law of the Court of Justice on patents national copyright laws. It is an expression but there is no reason for treating copyright differently in this respect. See also the judgments referred to in footnote of the Court of Justice's view of the essential 47.

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linked to copyright, which are the only ones subject-matter when defining the concept of that concern an assignee like ITP, are not for­ essential function (see section (b) above) the gotten. actual definition of the essential function of copyright does not otherwise appear to have been disputed in these proceedings.

50 — Sec Article 6a(l) of the Berne Convention which defines the scope of mora! protection as follows: 'Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim author­ ship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in rela­ tion to, the said work, which would be prejudicial to his honour or reputation'. As regards moral rights, sec also the Commission's green paper on copyright and the technolog­ 77. That result is correct in principle. But it ical challenge COM(88)172 dcf. of 21 February 1989, point is necessary to specify in what way the con­ 5.6.27. cept of essential function is relevant to an 51 — See Joined Cases 55 and 57/80 Musik-Verineb Membran v GEMA [1981] ECR 147, paragraph 12. Article 86 analysis.

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78. I have already said that it may be or restrictions on competition. Consequently assumed that Article 86 as well as Articles if an exercise of a given intellectual property 30 and 36 may apply where rights within the right is necessary in order for that right to be specific subject-matter are exercised in spe­ able to fulfil its essential function, that exer­ cial circumstances. The key issue is, as men­ cise is not affected by the Treaty rules. It is tioned above, how the Court of Justice is to only where an exercise is not necessary in determine whether such special circum­ order to fulfil the essential function that the stances exist. It is in this context that the interest of free movement of goods or the concept of the essential function is relevant. interest of free competition must prevail over the interest of the owner of the right to engage in that exercise.

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order to guarantee the copyright owner a the protected work by the licensee and sufficient reward for his creative effort. would also be able to obtain protection of his moral rights by laying down correspond­ 52 ing terms in the licensing agreement.

83. However, the presence of specified cir­ 85. The Court's case-law concerning Arti­ cumstances may mean that the interests of cles 30 and 36 confirms that that is the mean­ the copyright owner carry less weight or that ing to be attributed to the essential func­ the interests of competition carry more tion. 53

weight than usual. In such a situation an analysis under Article 86 may perhaps lead to the possibility of demanding royalties being regarded as sufficient to guarantee the owner a reward for his creative effort since the right to refuse licences cannot under The Court determines what rights are cov­ those circumstances be regarded as necessary ered by the specific subject-matter on the in order to fulfil the essential function. basis of an assessment of what is necessary in order to fulfil the essential function of the 54 intellectual property right in question.

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owner carry less weight and/or the interest the basis of Article 86 with a right which, of the free movement of goods carries more according to the Court's case-law, is covered weight than usual and that the result of the by the specific subject-matter of copyright balance is that an exercise in those circum­ and in this connection to consider the signifi­ stances is held to be incompatible with the cance of the concept of the essential function Treaty rules. As described above in section of copyright. (c), in the context of an Articles 30 and 36 analysis, such conduct will generally be defined as conduct not covered by the spe­ 55 cific subject-matter. Judgments of that nature indicate that the Court has found that an exercise of rights which are in principle covered by the specific subject-matter was not necessary in the circumstances in ques­ tion in order for the intellectual property right to be able to fulfil its essential function. There is an inherent risk here that the impression might be given that the concept of specific subject-matter has been so relativ­ ized that it does not have any real meaning. Such a view would be wrong. Once the con­ tent of the specific subject-matter of copy­ right has been laid down, it is always the However, in a number of cases the Court has starting point for the Court's analysis and it also held that an exercise of rights covered is clear that substantial and weighty grounds by the specific subject-matter is to be must be put forward to show that rights cov­ regarded even in specified circumstances as ered by the specific subject-matter of copy­ necessary in order to fulfil the essential func­ right can be exercised in a manner incompat­ tion of the intellectual property right in ible with the Treaty rules. 56 question.

(e) The emergence of a new product for which there exists a substantial potential demand from consumers 91. The interest of consumers in the emer­ gence of a new product is undoubtedly rele­ vant when considering whether there exists conduct restricting competition within the meaning of Article 86. The Commission has stressed that Article 86(b) provides that an 89. In its judgments the Court of First abuse of a dominant position may, in particu­ Instance stressed, as regards both RTE and lar, consist in 'limiting production, markets ITP, that each undertaking 'by reserving the or technical development to the prejudice of 58 exclusive right to publish its weekly televi­ consumers'. sion programme listings, was preventing the emergence on the market of a new product, namely a general television magazine likely to compete with its own magazine' and for which there was 'potential consumer demand' (paragraph 73 of the RTE judg­ ment; paragraph 58 of the ITP judgment). 92. At first sight, therefore, there might appear to be grounds for finding that special circumstances exist which signify that the exercise of rights included in the specific subject-matter may be classified as an abuse where the exercise is carried out in order to prevent the emergence of a new product. 90. A clearly decisive factor for the applica­ Closer consideration shows, however, that tion of Article 86 in these cases was that by their conduct RTE and ITP were preventing the emergence of a new product. No-one 57 — The Commission was at pains to demonstrate in its decision would doubt the fact that RTE and ITP were that the situations in the other Member States and the expe­ rience — albeit limited — with the publication of the Magill entitled to exercise their copyright in order TV Guide showed that there was a substantial potential demand on the market for comprehensive TV guides. In the to prevent the publication of television proceedings before the Court of First Instance the appli­ guides corresponding to their own respective cants contended that the Commission had failed to produce proof of this (paragraph 37 of the RTE judgment; para­ guides. In its decision the Commission speci­ graph 22 of the ITP judgment). I consider that the factors adduced by the Commission arc sufficient to substantiate fied that Article 86 had been infringed in so the potential demand. far as the practice and policy of the under­ 58 — In this connection the Commission referred to the judg­ ment of the Court of First Instance in Case T-51/89 Tetra takings prevented the publication of a com­ Pak [1990] ECR II-309.

But that cannot suffice in itself in order to 96. I consider it appropriate to find that require a copyright owner to grant licences there is an abuse of a dominant position if a (see below concerning products which a pro­ copyright owner by means of his copyright prietor could have produced himself but has prevents the emergence of a product which for the time being chosen not to produce). In does not compete with his product since it the context of the circumstances of these meets other consumer needs than those that cases, it is necessary to consider whether, in are met by his product. order for a product to be regarded as new, it suffices that it is furthermore a product that the copyright owner cannot produce himself, for example because such production pre­ supposes a licence to use works protected by the copyright of other parties. Alternatively, is the relevant criterion whether the product 97. The contrary is true, in my view, if in question competes with the product of the copyright is used in order to prevent the copyright owner? emergence of a product which is produced by means of the work protected by the copyright and which competes with the products produced by the copyright owner 59 — If the undertakings had chosen jointly to produce a com­ prehensive television guide but had otherwise denied third himself. Even if that product is new and bet­ parties that possibility) it would in any event not be pos­ ter, the interests of consumers should not in sible to justify interference with the specific subject-matter on the grounds that the undertakings' conduct prevented the emergence of a new product. However, such conduct might be indicative of discriminatory licensing policy and for that reason incompatible with Article 86. That is in any event the view taken by die Commission which states in 60 — The Commission states that its position in this case is in point 27 of its decision: 'To confine an order for the supply accordance with its earlier practice. For example, in of these listings to ITP, BBC and RTE, inter se, would dis­ 1984 the Commission suspended proceedings against IBM criminate against third parties wishing to produce a com­ in consideration of IBM's commitment, renewed and prehensive weekly guide in a manner which would not be extended in December 1988, to make available to competi­ compatible with Article 86'. ITP and RTE have not chal­ tors information about the functioning of its Systems lenged the Commission's decision on that point and it is 370 mainframe computers. Without that information com­ therefore unnecessary to decide whether the Commission's petitors could have been prevented from entering the mar­ view is correct. The United Kingdom legislation appears to ket for products which competed with those of IBM (Four- have been amended in such a way that licences must be teenth Report on Competition Policy, 1984, p . 79). granted to all interested parties and similarly RTE has cho­ According to ITP, however, the IBM case solely concerned sen to make licences for its programme listings generally the supply of information and intellectual property rights available. were not affected.

such circumstances justify interference in the sive conduct in its judgments in Volvo v specific subject-matter of the copyright. Veng and CICRA v Renault. The Court of Where the product is one that largely meets First Instance stated: the same needs of consumers as the pro­ tected product, the interests of the copyright owner carry great weight. Even if the market is limited to the prejudice of consumers, the right to refuse licences in that situation must be regarded as necessary in order to guaran­ tee the copyright owner the reward for his 'Moreover, the applicant's conduct stifled the creative effort. emergence on the market of a certain type of product, namely general television maga­ zines. Consequently, in so far as it was in particular characterized, in that regard, by a failure to take consumer needs into considera­ tion, that conduct also presented a certain similarity to a decision by a car manufacturer ... no longer to produce spare parts for cer­ 98. RTE and ITP are not able themselves to tain models even though there was still a produce a comprehensive weekly television market demand for such products' (para­ guide. But a comprehensive weekly televi­ graph 74 of the RTE judgment; paragraph sion guide would undoubtedly, as the Com­ 59 of the ITP judgment). mission has stated, compete with their respective weekly television guides. A com­ prehensive weekly television guide would both be cheaper and give a better overview but it would basically meet the same con­ sumer needs as may be met by buying weekly television guides for the individual 100. This example concerns products which television broadcasting organizations. In the copyright owner is able to produce him­ those circumstances the interests of the self on the basis of his copyright but has for copyright proprietor should prevail over the the time being chosen not to produce. The interests of consumers. There is no new example shows that there may exist an abuse product in a sense that may be relevant for of a dominant position where the owner of a the application of Article 86 and thus no spe­ registered design refuses to grant licences cial circumstance capable of justifying inter­ and at the same time does not himself pro­ ference with the specific subject-matter. duce the products protected by the regis­ tered design. As stated above, both those rights fall within the specific subject-matter of a registered design.

103. The Court of First Instance attached significance in its judgments to the fact that: 'the applicant was thus using its copyright in the programme listings which it produced as It seems clear to me that the Court attached part of its broadcasting activity [in the ITP decisive importance to the fact that consum­ judgment: "transferred to it by the television ers are particularly dependent on the product companies ... produced as part of the activity where a car manufacturer refrains from pro­ of broadcasting"] in order to secure a ducing spare parts for a particular car model monopoly in the derivative market of weekly even if there are still a large number of cars television guides' (paragraph 73 of the RTE of that model and where the lack of access to judgment; paragraph 58 of the ITP judg­ spare parts for those cars may mean that ment). consumers are obliged to buy a completely new car. The producer has himself created the need for spare parts and is thus abusing his registered design if by means thereof he prevents the need for spare parts from being met. 104. Those paragraphs must be understood as meaning that the market for programme listings is regarded as the main market and 61 — In other words, the interest of consumers in having access to a product must basically be taken into account by the market for television guides as the deriv­ national legislation on intellectual property rights which ative market. They must be read in conjunc­ may afford a basis for granting compulsory licences in the public interest where the owner himself does not exploit tion with the Commission's decision in the protected work to a reasonable extent; as regards such rules in the field of patent law see the judgments of the which it is stated that ITP and RTE each Court of Justice in Case C-30/90 Commission v United have a dominant position on one market, Kingdom [1992] ECR I-829 and Case C-191/90 Generics [1992] ECR 1-5335. namely the market for their own programme

105. With reference to the first example of abusive conduct given by the Court of Jus­ tice in its judgments in Volvo v Veng and in CICRA v Renault, the Court of First 107. RTE, ITP and IPO essentially argue Instance further stated: that it is part of a normal exercise of copy­ right to make use of it in order to exclude competition on a derivative market. A copy­ right owner will often obtain remuneration for his creative effort by producing and sell­ ing products which incorporate the product created on the basis of the copyright, that is to say on a derivative market. ITP adds that 'In the present case, the aim and effect of the it was precisely only on the market for tele­ applicant's exclusive reproduction of its pro­ vision guides that ITP commercially gramme listings was to exclude any potential exploited its copyright in its programme list­ competition from the derivative market rep­ ings. resented by information on the weekly pro­ grammes ..., in order to maintain the monop­ oly enjoyed, through the publication of the RTE Guide [in the ITP case, TV Times], by the applicant on that market. From the point of view of outside undertakings interested in publishing a television magazine, the appli­ 108. The Commission claims that the fact cant's refusal to authorize, on request and on that the copyright is being exercised in order a non-discriminatory basis, any third party to keep out any competition on a derivative to publish its programme listings is therefore market constitutes a special circumstance comparable, as the Commission rightly which may justify application of Article 86. stresses, to an arbitrary refusal by a car manu­ In support of that view the Commission facturer to supply spare parts — produced cites the judgments of the Court of Justice in in the course of his main activity of car mak­ General Motors Continental, 63 in Hugin, 64

109. The Commission has further claimed that the example from the judgments of the Court of Justice in Volvo v Veng and 111. Instead, as pointed out by ITP and in CICRA v Renault cited by the Court of contrast to what was stated by the Court of First Instance is relevant to a decision in the First Instance in its judgments (paragraph present cases. According to the Commission 74 of the RTE judgment; paragraph 59 of the the situation of Magill corresponds to that of ITP judgment) it is appropriate to draw an an independent repairer in so far as both are analogy with the situations at issue in Volvo dependent on the supply of products from v Veng and CICRA v Renault, namely that an upstream market (in programme listings Volvo and Renault were entitled to refuse a and car parts respectively) in order to carry licence to market spare parts that had been on an activity on a derivative market (the produced without Volvo's and Renault's market for television guides and the market approval. It should be noted that the Court for repairing Volvo and Renault cars respec­ of Justice did not see fit in that connection to tively) where they compete with their sup­ distinguish between licences for the purpose pliers (RTE's and ITP's own weekly televi­ of competing on the market for the sale of sion guides and Volvo's and Renault's spare parts and licences for the purpose of authorized repairers respectively). The Com­ competing on the market for repairing Volvo mission concedes however that the analogy and Renault cars. is not complete since Magill's situation dif­ fers in so far as the supply of a product was not sufficient for Magill to be able to carry out its activity as Magill needed to obtain a licence in order to produce copies of the protected work itself. 112. There is therefore no basis for treating the exercise by a copyright owner of his copyright in order to prevent competitors from using the protected work differently 65 — Case 311/84 [1985] ECR 3261. 66 — Case 226/84 [1986] ECR 3263. according to the market on which such use

116. In respect of the reference by the Court of First Instance to the fact that permission was granted for the publication of pro­ gramme listings on a daily basis it may also be noted that Magill claimed at the hearing 114. The Commission has claimed that the that these cases do not concern refusals of first of the facts cited by the Court of First licences and thus do not entail the imposi­ Instance was rightly taken into account in tion of compulsory licences. Magill points determining these cases. However, the Com­ out that ITP and RTE have granted a large mission has failed to explain why that fact is number of licences and it claims in that con­ relevant. Its view is presumably that the text that these cases are concerned with the undertakings' conduct is an indication of a granting of licences on unreasonable terms, discriminatory licensing policy since licences are granted to certain categories of publish­ ers, namely those who wish to publish daily 67 — Sec paragraph 57 of the RTE judgment and paragraph 40 of programme listings or highlights of the the ITP judgment.

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A deci set licensing terms. As shown in section (c) sion on such grounds to refrain from taking above, that view is incorrect. The right to action against infringements of copyright grant licences also includes the right to do so cannot be assimilated to permission to pub on specified terms. On the other hand it may lish and it is not therefore an indication of a constitute a special circumstance possibly discriminatory licensing policy. Nor does justifying interference in the specific subject- that fact appear to be otherwise significant matter of the copyright if licences are for a decision in these cases. granted on unreasonable terms.

118. The Court of First Instance begins its ferent, more restricted use of those listings. discussion of the existence of an abuse by stating: 'In the absence of harmonization of national rules or Community standardiza tion, the determination of the conditions and 68 — The Commission is presumably expressing the same view in its decision when it states: 'having regard to the actual poli cies and practices of ITP, BBC and RTE, respectively, which are to supply publishers with their advance weekly listings but to limit by means of the terms of licences 69 — RTE has pointed out that the judgment of the Court of granted the reproduction of these listings to one or at most First Instance contains a factual error in this regard but it two days' listings at a time or to refuse licences altogether, adds that the error is not likely to have had any decisive the Commission takes the view that these policies and prac significance for the reasons given by the Court of First tices are unduly restrictive.' Instance for its decision.

procedures under which copyright is pro­ on the contrary constitute an abuse of a tected is a matter for national rules' (para­ dominant position (paragraph 47 of the RTE graph 66 of the RTE judgment; paragraph judgment; paragraph 30 of the ITP judg­ 70 51 of the ITP judgment). The Court of ment). First Instance concludes its examination on this point by finding that the conduct at issue is not compatible with the Treaty rules 'although the programme listings were at the material time protected by copyright as laid down by national law, which still determines 120. In the proceedings before the Court of the rules governing that protection' (para­ Justice the Commission has stated that it is graph 75 of the RTE judgment; paragraph for the national authorities and courts to 60 of the ITP judgment). determine what works fall under copyright protection. At the same time, however, the Commission has stated that the Court of First Instance was right to take account of the unusual nature of the national right in 71 deciding on the cases. 119. During the proceedings before the Court of First Instance the Commission drew 'attention, in general terms, to the incompatibility with Community rules of a national law which upholds the existence of copyright in programme listings' (paragraph 121. RTE, ITP and IPO claim that both the 44 of the RTE judgment; paragraph 27 of the views of the Commission and the judgment ITP judgment). The Commission submitted of the Court of First Instance illustrate lack that 'the programme listings are not in them­ of respect for the principle that the scope of selves secret, innovative or related to copyright protection is to be determined by research. On the contrary, they are mere fac­ national law. They claim that the decisions tual information in which no copyright taken were in fact intended to censure the could therefore subsist' (paragraph 46 of the copyright protection of programme listings RTE judgment: paragraph 29 of the ITP under Irish and United Kingdom law. judgment). It recognized that programme listings are protected under national law but claimed, on the basis of the factors men­ tioned, that 'the relevant policies and prac­ tices of the applicant are not covered by copyright protection as recognized in Com­ 122. It follows from the foregoing review munity law' (paragraph 43 of the RTE judg­ that I do not otherwise consider that the ment; paragraph 26 of the ITP judgment) but refusals to grant licences in these cases took place under such special circumstances as to

123. As indicated at the outset it may rea­ sonably be claimed that the effort involved in drawing up programme listings is not so deserving of protection as to justify accep­ tance that the author may prevent the emer­ gence of comprehensive weekly television guides. The preparation of the programme 125. In the present cases too the Court listings does not require any incentive since should adhere to that principle which, in my the listings do not consist of anything more view, reflects a fundamentally correct divi­ than the setting out on paper of certain sion of competence between national law information which must in any event be pro­ and Community law. If there is a need under duced and compiled for the purposes of the Community law to restrict the copyright television broadcasting service. If that factor protection of specific products, that must be is taken into consideration I see no difficulty in holding that the refusals to grant licences in these cases are indications of an improper exercise of copyright. The question is, how­ 72 — See the judgments referred to in footnote 70. See also the Opinion of Advocate General Mischo in Case ever, whether the Court of Justice is able to 53/87 CICRA v Renault [1988] ECR 6039, points 21 to 32, attach significance to the nature of the work where he suggested that the Court examine whether protec­ tion of certain products based on national law was 'in con­ protected by copyright. formity with the function assigned by the Court to indus­ trial and commercial property, which is that of providing a "reward for the [inventor's] creative effort"' (point 32). In its judgment the Court confirmed that the question of what products qualified for protection was a matter for national law (paragraph 10). 73 — Compare the judgment of the Court of Justice in Case C-317/91 Deutsche Renault [1993] ECR I-6227 where the Court referred, as an example of a possible overstepping of the limitations resulting from the second sentence of Article 36, to the situation where a producer from another Member State could not enjoy, on the same terms, the protection afforded by German law to a trade mark, whether or not registered, or where such protection varied on the basis of the national or foreign origin of the products bearing the sign in question (paragraph 27). See also paragraph 33. In 124. The Court of Justice has hitherto unre­ his Opinion in that case, Advocate General Tesauro pointed out, rightly in my view, that in the application envisaged by servedly held that it is for the national legis­ the case-law, the actual scope of that reservation — which takes the form of a sort of minimum safeguard clause — is latures to determine what products may confined to extreme cases (almost textbook cases) enjoy the protection of intellectual property (point 14).

129. It follows from what I have said above that I do not consider that there exists, in the present cases, anti-competitive conduct within the meaning of Article 86 since the refusals to grant licences did not take place under such special circumstances that they 127. It must therefore be concluded that the may be classified as an abuse of a dominant fact that the programme listings are less- position. There is accordingly no need to deserving of protection is also not a circum­ examine whether there is a valid justification stance that can justify interference with the for the undertakings' conduct (see section exercise of copyright therein. (d), subsection (aa) above). In those circum­ stances RTE and ITP, supported by IPO , are right to challenge the judgments of the 74 — Sec in this connection Council Directive 91/250/ĽEC of Court of First Instance by pointing out that 14 May 199! on the legal protection of computer pro­ grammes (OJ 1991 L 122, p. 42) and Council Directive they cannot be required to justify their 93/98/EEC of 29 October 1993 harmonizing the term of refusals to grant licences. However, in the protection of copyright and certain related rights (OJ 1993 L 290, p. 9). event that the Court of Justice should find

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that the refusals to grant licences took place ITP's submissions are, moreover, incorrect under special circumstances that render them since in its decision the Commission stated: liable to be classified as abusive it is neces­ sary to consider whether there exists objec­ tive justification for such conduct. I would make the following comments.

75 — See for example judgments of the Court of Justice in Case 311/84 Telemarketing [1985] ECR 3261, paragraph 26, and 133. It may therefore be assumed, in my Joined Cases 110, 241 and 242/88 François Lucazeau [1989] ECR 2811, paragraph 25. view,, that, as the Court of First Instance

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held, ITP and RTE did refuse to grant artistic works in the narrow sense, it is essen- licences and thus excluded all competition tial in order to maintain effective competi- from the market for comprehensive televi­ tion, particularly in the computer and tele- 76 sion guides solely in order to secure their communications industries. monopoly on the market for weekly televi­ sion guides (paragraph 73 of the RTE judg­ ment; paragraph 58 of the ITP judgment). In other words, if the Court of Justice were to hold that the refusals to grant licences other­ wise took place in special circumstances which are such as to render them liable to be classified as an abuse, they would be incom­ patible with Article 86.

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OPINION OF MR GULMANN — JOINED CASES C-241/91 P AND C-242/91 P

136. As regards the Commission's fear that tion of the judgments of the Court of First these cases may form a precedent in the field Instance are unfounded because it is highly of computer software, ITP has claimed that unlikely that the copyright owners in the sit­ the appropriate solution in that respect is uations mentioned would hold dominant legislation and that the Commission's con­ positions and their conduct cannot therefore cerns do not, moreover, appear to relate to be incompatible with Article 86. It adds that the reproduction of protected works but to in the four years since the judgment of the information concerning them which does not Court of Justice in Volvo v Veng Article affect the copyright. 86 has only once — that is in these cases — formed the basis for a formal decision in order to remedy an abuse of intellectual property rights.

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rules, are essential to draw the correct Article 86 may apply to exercise of rights balance between the interests of the right- which in principle fall within the specific holder and those dependent on the subject-matter gives rise to legal uncertainty. right-holder'. That application of Article 86 does not differ 77 from any other application of Article 86. Moreover, national courts will be able to refer questions to the Court of Justice for a preliminary ruling on the precise circum­ stances in which Article 86 may apply.

144. RTE and ITP claimed before the Court 142. Let me finally mention that ITP has of First Instance that the Berne Convention claimed that confirmation of the judgments must be regarded as forming part of Com­ of the Court of First Instance would give munity law and that the Commission's deci­ rise to legal uncertainty, both for the owners sion is incompatible with Article 9 of that of copyrights and for national courts which Convention on the right to reproduce the may also apply Article 86 and may have protected work. problems in determining whether the condi­ tions for applying Article 86 resulting from the judgments of the Court of First Instance 77 — See in this connection the judgment in Case T-51/89 Tetra are met. I do not accept the view that a legal Pak [1990] ECR 11-309, paragraph 37, in which the Court of First Instance stated: 'accordingly, an undertaking cannot situation which presupposes ongoing further rely on the alleged unpredictability of the application of Article 86 in order to escape the prohibition there laid definition of the circumstances in which down'.

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OPINION OF MR GULMANN — JOINED CASES C-241/91 P AND C-242/91 P

145. The Court of First Instance prefaces its States in order to justify restrictions on trade assessment of that plea by stating 'the Com­ within the Community. munity — to which, as Community law now stands, powers have not been transferred in the field of intellectual and commercial prop­ 78 erty — is not a party to the Berne Con­ vention, which has been ratified by all the Member States' (paragraph 102 of the RTE judgment; paragraph 75 of the ITP judg­ 147. The Court of First Instance draws a ment). distinction between Article 9(1) of the Berne Convention which confers on the author the exclusive right of reproducing the protected work and Article 9(2) under which signatory States may permit the reproduction of pro­ tected works in certain special cases and sub­ ject to specified conditions.

78 — There is no cause in these proceedings to examine the ques­ As regards Article 9(2), the Court of First tion of the competence of the Community in the field of intellectual and commercial property rights but I would Instance points out that that provision was mention that in its proposal for a Council decision concern­ inserted in the Berne Convention by the ing the accession of the Member States to the Berne Con­ vention (OJ 1991 C 24, p . 5) the Commission states: '... the subject-matter of the Berne Convention (Paris Act) ... falls witnin the competence of the Community; ... at present the accession of the Community as such to these instruments is not possible without a prior modification allowing the 79 — See the judgments of the Court of Justice in Case accession of international organizations as such; ... in view 10/61 Commission v Italy [1962] ECR 1, Case of developments at Community level, the Community as 812/79 Attorney General v Burgoa [1980] ECR 2787, para­ such could be in a position to adhere to the Berne Conven­ graph 8, and Case 121/85 Conegate v HM Customs and tion ...' (seventh recital). Excise [1986] ECR 1007, paragraph 25.

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149. I believe it is correct, as will be shown below, that the Berne Convention cannot be 152. But it will also be apparent that that a basis for annulling the Commission's deci­ alteration to the premiss for the assessment sion. However, in two respects it is expedi­ of the Court of First Instance does not affect ent to clarify and expand upon the reasons its result since its reasoning regarding Article given by the Court of First Instance. 9(2) of the Convention will now apply equally to Article 9(1).

150. First of all, the Court of First Instance was wrong in the present context to distin­ 153. The Court of First Instance examined guish between Article 9(1) and Article 9(2) the question of the legal situation applying if of the Convention. Secondly, and more there is found to be an actual conflict importantly in my view, it failed to consider the significance which the Berne Convention may have for the interpretation of Article 80 — See Guide to the Berne Convention (Geneva 1978) issued 86 of the Treaty. by the World Intellectual Property Organization.

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83 — See for example the first recital in the preamble to the 154. I consider that it is appropriate to inter­ Commission's Proposal for a Council decision concerning the accession of the Member States to the Berne Conven­ pret Article 86 in accordance with the Berne tion (OJ 1991 C 24, p. 5) and the second recital in the pre­ Convention. Many factors militate in favour amble to the Council resolution of 14 May 1992 on increased protection for copyright and neighbouring rights of account being taken of the Berne Conven­ (OJ 1992 C 138, p . 1). 81 tion in interpreting the Treaty rules. 84 — Council Resolution on increased protection for copyright and neighbouring rights (OJ 1992 C 138, p . 1). In this con­ nection see also the Commission's Proposal for a Council Decision concerning the accession of the Member States to the Berne Convention (OJ 1991 C 24, p . 5) the fifth recital in the preamble to which states: 'the accession of all the 81 — The judgment of the Court of Justice in Joined Cases Member States to the Berne Convention (Paris Act) ... will 55/80 and 57/80 Musik-Vertrieb Membran GmbH v provide a common basis for harmonization on which to GEMA [1981] ECR 147, in which the parties had relied on pursue more easily the construction of the Community edi­ provisions in the Berne Convention, cannot be construed as fice as regards copyright and neighbouring rights'. See also a rejection of that view. It should also be noted in this con­ Article la in the Amended Proposal (OJ 1992 C 57, p . 13) nection that in many instances the Court of Justice has held according to which: 'In the exercise of its powers concern­ that the rules of the Treaty must be interpreted in the light ing copyright and neighbouring rights, the Community of the European Human Rights Convention (see inter alia shall be guided by the principles and act in accordance with Case 36/75 Rutili [1975] ECR 127 and Case the provisions of the Berne Convention' as revised by the C-353/89 Commission v Netherlands [1991] ECR 1-4069). Paris Act.

157. There are several examples, as RTE has pointed out, of references in secondary legis- lation of the Community to the Berne Con­ vention as an expression of a general and broadly accepted minimum standard, see Council Directive 91/250/EEC of 14 May 160. The Commission contends that the 1991 on the legal protection of computer Berne Convention does not oblige its signa­ programs, 85 Council Directive 93/98/EEC tories to grant copyright protection to a utili­ of 29 October 1993 harmonizing the term of tarian, non-literary list of programme titles protection of copyright and certain related and times and points to Article 2(8) of the rights, 86 and finally the Commission's Pro­ Convention which provides: 'The protection posal for a Council Directive on the legal of this Convention shall not apply to news protection of databases of 15 April 1992. 87 of the day or to miscellaneous facts having the character of mere items of press informa­ tion'. It submits that the Berne Convention does not forbid countries of the Union from extending their copyright protection to works other than literary and artistic works but in such cases it places no constraints on how such countries regulate the exercise of copyright over such works. 158. Finally, I would point out that in its submissions in these cases the Commission

85 — OJ 1991 L 122, p. 42. See the twenty-fifth and twenty-ninth recitals in the preamble and Article 1(1) and in particular Article 6(3) whose wording corresponds in all material respects to Article 9(2) of the Berne Convention. 86 — OJ 1993 L 290, p. 9. See recitals 1, 4, 5, 12, 14, 15, 17 and 161. The World Intellectual Property Orga­ 22 in the preamble and Article 1(1) and Article 7(1). nization (WIPO), which administers the 87 — OJ 1992 C 156, p. 4. See recitals 19, 22 and 26 in the pre­ amble and Article 2(1) and (2). Berne Convention, has issued a Guide to the

163. RTE claims that Article 9(2) entails the condition that compulsory licences can be On that basis it is appropriate to accept granted only pursuant to specific legislation RTE's submission that programme listings which clearly sets out how and when com­ pulsory licences can be imposed. As an example of legislation which does meet that condition, RTE refers to the legislation 88 — It states at the outset: 'This Guide is not, however, intended recently introduced by the United Kingdom to be an authentic interpretation of the provisions of the Convention since such an interpretation is not within the under which radio and television broadcast­ competence of the International Bureau of WIPO, whose role is to be responsible for the administration of the Con­ ing organizations are obliged to grant vention. The sole aim of this Guide is to present, as simply licences for their programme listings and to and clearly as possible, the contents of the Berne Conven­ tion and to provide a number of explanations as to its Article 8(1) of the Commission's Proposal nature, aims and scope. It is for the authorities concerned, and interested circles, to form their own opinions.' for a Council Directive on the legal protec-

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tion of databases. Article 86 of the Treaty, states: 'This provision gives to member on the other hand, according to RTE, does countries the power to cut down this exclu­ not meet that condition since it is not suffi­ sive right of reproduction and permit works ciently clear in its terms to give copyright to be reproduced "in certain special cases". owners an adequate indication of when they But the freedom allowed them is not total. may be required to grant licences but instead The Convention adds two conditions ... leaves such an obligation to be made precise which apply cumulatively ...'. and adapted from case to case at the Com­ mission's discretion.

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OPINION OF MR GULMANN — JOINED CASES C-241/91 P AND C-242/91 P

167. Lastly, as regards the condition in Arti­ under special circumstances, to grant licences cle 9(2) that 'such reproduction does not for their copyright works. conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author', it seems clear that the power for the Commis­ sion, acting on the basis of the Treaty com­ petition rules, to require undertakings to grant licences if the very restrictive condi­ 169. For the eventuality that the Court of tions I have described above are met cannot Justice should agree that under special cir­ in general be regarded as incompatible with cumstances it may be incompatible with that provision. As the Commission has Article 86 to refuse to grant licences and, pointed out, compliance with those condi­ contrary to the result I have proposed, find tions will ultimately be subject to review by that such special circumstances do exist in the Court of Justice. these cases, I shall go on to consider the other pleas submitted to the Court of Justice.

grant licences for their copyright works. First Instance should have taken into Some of the arguments put forward echo the account. I find it difficult to see how those arguments considered above concerning the circumstances could entail that a requirement question whether it may be incompatible to authorize interested parties, on request with Article 86 to refuse to license and will and on a non-discriminatory basis, to pub­ therefore not be reconsidered here. I con­ lish the undertaking's weekly listings, possi­ cluded above that under special circum­ bly by granting them a licence subject to cer­ 92 stances a refusal to licence may constitute an tain conditions, goes beyond the bounds abuse of a dominant position. All that of what is appropriate and necessary in order remains to be examined, as the Commission to bring to an end an infringement of Article points out, is whether the said provision 86 consisting in this case of the undertaking's gives the Commission power to require the refusal to licence. In this respect too, there­ dominant undertaking to grant licences or fore, I can see no grounds for criticizing the whether the Commission may go no further judgment of the Court of First Instance (see than to require the undertaking to bring the paragraphs 80 and 81 of the ITP judgment). infringement of Article 86 to an end. In this respect I wholly endorse the reasons given by the Court of First Instance for its deci­ sion and I shall merely refer to paragraphs 70 and 71 of the ITP judgment. G — The question whether the Court of First Instance defined the relevant product market and applied the concept of a domi­ nant position incorrectly

91 — ITP points out that: the decision removed not only ITP's exclusive right to reproduce, but also its right to first mar­ 90 — ITP headed the section of its appeal dealing with this pilea ket its product which is particularly important where, as in 'Misuse of Powers'. That has been criticized by the Com­ this case, the product is perishable, with a useful life of only mission which contends that were it to have gone beyond 10 days; there is no reciprocity between ITP and the com­ its competence, that would not signify that a misuse ol petitors (other than BBC and RTE) whom it is required to power had occurred. I must agree with the Commission in license; and many of those competitors, particularly that respect. As far as I can sec ITP is not claiming that the national newspapers, enjoy turnovers and profits greatly in Commission in its decision pursued aims other than those excess of ITP. set out in Article 86 but merely that the Commission relied 92 — As the Commission has stressed, the decision allowed the on the enabling provision in Article 3 of Regulation No undertakings to demand royalties and set such licensing 17 in a manner for which ITP believes there is no basis in conditions as were deemed necessary in order to protect that provision. their legitimate interests.

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OPINION OF MR GULMANN — JOINED CASES C-241/9I P AND C-242/91 P

178. IPO claims that the Court of First Instance wrongly found in its judgments that the undertakings held a dominant position 175. I can see no reason to criticize the simply because they owned the copyrights in Court of First Instance's definition of the question and without any examination what­ relevant product markets which is based on a soever of their economic strength on the customary and properly carried out analysis market. IPO further claims that in its deci­ of the substitutability of the products in sion the Commission applied the criterion of question. Moreover, I have the impression position of economic strength incorrectly. that in reality IPO's reservations concern the question whether a copyright proprietor is entitled to retain for himself use of the copy­ 93 — See the judgments of the Court of Justice in Case right work on a derivative market. However, 78/70 Deutsche Grammophon [1971] ECR 125, paragraphs that question concerns the definition of 16 and 17, Case 40/70 Sirena [1971] ECR 7, paragraph 16, and Case 51/75 EMI Records v CBS United Kingdom when there is an abuse of a dominant posi­ [1976] ECR 811, paragraph 36. tion and in any case, as I have already stated 94 — Judgment of the Court of Justice in Case 322/81 Michelin [1971] ECR 3461, paragraph 30. See also inter alia the judg­ in section (f), the answer must be in the affir­ ments of the Court of Justice in Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 38 and mative. Case 311/84 Télémarketing [1985] ECR 3261, paragraph 16.

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181. IPO criticizes the Commission's appli­ cation of the concept of factual monopoly. It claims that such a monopoly will arise wher­ In addition, the factual monopoly held by ever there exists a primary market and a sec­ the broadcasting organizations in relation to ondary market and a third party unilaterally their individual programme listings is decides to use the products on the primary strengthened into a legal monopoly in so far market in order to carry on business on the

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OPINION OF MR GULMANN — JOINED CASES C-241/91 P AND C-242/91 P

secondary market. Economic dependence is 183. The Court of First Instance upheld the thus artificially linked to the intention of a Commission's decision on this point on the third party. IPO claims that the Commis­ following grounds: sion's concept of factual monopoly is an arti­ ficial construct intended to justify the use of competition law in order to change the spe­ cific subject-matter of copyright.

95 — See the judgments of the Court of Justice in Case 26/75 Genera Motors Continentul [1975] ECR 1367, para­ graph 9, Case 22/78 Hugin Kassaregister [1979] ECR 1869, 184. There is some justification for IPO's paragraphs 9 and 10, Case 311/84 Telemarketing [1985] criticism of the Court of First Instance's ECR 3261, paragraphs 16,17 and 18, and Case 226/84 Brit- ish Leyland [1986] ECR 3263, paragraphs 5 and 9. judgments. The Court of First Instance does

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appear to have attached decisive weight to 86 of an effect on trade between the Member the undertakings' copyrights, an approach States is met. It gives the following grounds: which, as mentioned above, is not in accor­ dance with the case-law of the Court of Jus­ tice. But since I am, for the rest, in agree­ ment with the result reached by the Court of First Instance and since it does point out that there exists economic dependence, I do not believe that this factor in itself constitutes 'In the present case, the Court finds that the sufficient reason to annul the judgments of applicant's conduct modified the structure of the Court of First Instance. competition on the market for television guides in Ireland and Northern Ireland and thus affected potential trade flows between Ireland and the United Kingdom.

H — The question whether the Court of First Instance misconstrued the concept of effects on trade between Member States

tained the partitioning of the markets repre­ market, for example because it leads to the sented by Ireland and Northern Ireland elimination of a competitor. respectively. RTE points out that it has never hindered the export or import of television guides and that it has observed one and the same policy in respect of the supply of weekly programme listings and licensing irrespective of the place of establishment of the undertakings concerned.

That judgment concerned Article 99 — At the hearing RTE stressed that the issue of effects on 85 but there are no grounds for interpreting the condition trade must be assessed separately for RTE since the Com relating to effects on trade in Article 86 differendy. See also mission did not base its decision on joint dominance. RTE the judgments of the Court of Justice in Case 322/81 on its own was not in a position to affect the structure of Michelin [1983] ECR 3461, paragraph 104, and Case competition in the common market. RTE could only grant C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph licences for its own programme listings and since it is 32, which both concerned Article 86 and in which the unlikely that other publishers would wish to publish a tele Court held that the condition of an effect on trade is not vision guide containing only RTE's programme listings, only fulfilled if the conduct qualified as an abuse has actu RTE's conduct could not therefore affect trade in weekly ally affected trade but it is sufficient to establish that that television guides in Ireland and Northern Ireland.

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190. As argued by RTE, and contrary to the — only some 100 000 households in North­ Commission's contentions, it is not, how­ ern Ireland, corresponding to 30-40% of ever, sufficient that there exists in the manner the population of Northern Ireland and described an actual or potential effect on to less than 1.6% of the television market trade. The Court of Justice has held that the in the United Kingdom and less than 10 effect must be appreciable. 0 0.3% of the market within the Commu­ nity can receive RTE's broadcasts and only some 5 000 copies of RTE Guide are 10 sold in that area. 1

191. RTE claims that its licensing policy only has insignificant effects on trade between Ireland and the United Kingdom. It 192. RTE further claims that in any event it points out that: is the Commission which must prove that there has been an appreciable effect on trade between Member States. RTE considers that the Commission has failed to adduce such proof since it merely stated in its decision:

— demand for television programme guides containing RTE's programme listings only exists, by the very nature of things, in areas where RTE's broadcasts can be received, that is Ireland and a small bor­ der region of Northern Ireland; 'The abovementioned abuse has an effect on trade between Member States because a com­ prehensive television guide containing the advance weekly listings of ITP and BBC regional programmes and those of RTE would clearly be marketed in both Ireland — RTE has no programmes or commercials and Northern Ireland, which would include which are aimed at or broadcast to cross-border trade in such a guide or guides. Northern Ireland since Northern Ireland In addition trade in the advance weekly list­ has no cabling and RTE's broadcasts can ings themselves would include that of a therefore only be received in Northern cross-frontier nature' (point 24). Ireland because of Overspill';

'It must further be pointed out that clear evi dence of the appreciable effect which the 193. RTE submits that there are grounds for policy at issue had on potential trade flows overturning the judgment of the Court of between Ireland and the United Kingdom First Instance since it did not carry out a may be found in the specific demand for a fundamental analysis of the market in order general television magazine of the Magill TV to determine whether there exists an appre Guide type, demonstrated by the success of ciable effect on trade, and because it did not television magazines specializing in the pro take into consideration the factual informa grammes of a single television channel in the tion and arguments put forward by RTE or absence, at the material time, of a compre properly discuss those factors. hensive television guide on the relevant geo graphical market. The applicant's informa tion policy as regards weekly programmes hindered the production and marketing of 102 — RTE observes in this context that the Commission's deci general television magazines, which were sion refers only to trade between Ireland and Northern Ireland.

programmes. Since it is sufficient, in my view, in deciding (paragraph 77 of the RTE judgment). on this case to take account of trade between Ireland and Northern Ireland, it is not necessary to determine defini tively whether a possible effect on trade between Ireland and the United Kingdom mainland may be taken into con sideration. I would nevertheless make the following brief comments: the fact that the British television broadcasting organizations were afraid of the import of a Magill TV Gliide from Ireland to the United Kingdom mainland and the fact that amendments to the United Kingdom legisla tion meant that comprehensive weekly television guides produced in the United Kingdom appeared on the Irish market primarily serve to substantiate the significance of 195. The case-law of the Court of Justice the licensing policy applied by ITP and BBC, whose pro grammes — in contrast to those of RTE — could be does not require much for the condition of received both in the United Kingdom and in Ireland.

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I05 casts can be received. I do not therefore not set out the legal grounds which led it to consider that there are any grounds for crit find for the first time that an exercise of icizing the judgment of the Court of First copyright by refusing to grant licences may 106 Instance in this respect. constitute an abuse of a dominant position in breach of Article 86; the Commission did no more than assert that the conduct in question was outside the specific subject-matter of copyright but gave no grounds or explana tion for that assertion; the grounds on which the Commission is now relying are not set 104 — Sec in this connection the judgment in Case 322/81 out in the decision; and the Commission Michelin [1983] ECR 3461, paragraphs 102 to 105, in which the Court of Justice rejected criticism of the failed to explain why the principles laid Commission's decision to the effect that the reasoning was down by the Court of Justice in Warner based on the existence of a presumption of an effect on 107 trade and indicated a purely abstract and theoretical Brothers and Volvo v Veng are not appli

The Commis expressly refer in its decision to the fact that RTE's con duct affected the structure of competition in the common sion suggests that in order to avoid needless market and could therefore lead to an appreciable effect on duplication in this respect the Court of Jus trade. But that cannot be conclusive. It is plain from the decision that RTE's conduct led to the elimination of a tice should limit itself to examining the judg competitor and excluded new competitors from the mar kets (see point 23) and that the product concerned was one ment appealed against with a view to deter for which there existed potential demand both on the Irish mining whether it contains a manifest error. market and on part of the Northern Ireland market (see

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OPINION OF MR GULMANN — JOINED CASES C-241/91 P AND C-242/91 P

The Commission then contends that its deci­ factual and legal aspects. The question sion was adequately reasoned and that the whether the statement of the reasons on judgment of the Court of First Instance does which a decision is based meets those not contain an error and in any event not a requirements must be assessed with regard manifest error in that respect. not only to its wording but also to its con­ text and to all the legal rules governing the 108 matter in question.'

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subject-matter of that intellectual property J — Costs right.

203. Article 69(2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings and that where there are several unsuccessful parties the Court may decide how the costs 201. The Commission thus listed the cir­ are to be shared. Article 69(4) provides that cumstances which in these cases might if the Court may also order interveners other appropriate justify interference with the spe­ than Member States and institutions to bear cific subject-matter of copyright (see Chap­ their own costs. ter D, sections (e), (f), (g) and (i)). It is expressly indicated that the Commission does not believe that the specific subject- matter of copyright can, in the circumstances thus listed, afford protection against applica­ 204. If the Court were to agree with what I 109 tion of Article 86. That is, in my view, have proposed, the unsuccessful party in sufficient to satisfy the requirements regard­ these cases will be the Commission, sup­ ing a statement of reasons under the case-law ported by Magill. of the Court of Justice since I can see no cause to require further legal basis or refer­ ence to the case-law of the Court of Justice.

205. In its judgments the Court of First Instance ordered RTE and ITP to pay the costs, including those of the intervener. In this respect too the operative part of the judgment must be set aside.

Conclusion

208. Accordingly I propose that the Court of Justice:

— set aside the judgments of the Court of First Instance of 10 July 1991 in Case T-69 / 89 RTE v Commission [1991] ECR 11-485 and Case T-76/89 ITP v Com- mission [1991] ECR 11-575;

— give final judgment on the matter pursuant to the first paragraph of Article 54 of the Statute of the Court of Justice and annul Commission Decision 89 / 205 / EEC of 21 December 1988 relating to a proceeding under Article 86 of the EEC Treaty, making the forms of order sought by Radio Telefis Eireann and Independent Television Publications Limited in their applications;

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