Opinion of Mr advocate-general Roemer
Mr President,
Members of the Court,
On 13 November 1970, in connexion with proceedings initiated on 5 June 1970 on the ground of an infringement of Articles 85 and 86 of the EEC Treaty against the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (hereinafter referred to as GEMA), a registered association having its office in Berlin, following receipt of a notice of objections in accordance with Article 19(1) of Regulation No 17/62 on restrictive practices, the Deutscher Komponistenverband (hereinafter referred to as the Association), a registered association having legal personality, of which most German composers are members and whose object is the protection and promotion of their common professional interests, sent by Telex to the Director for Agreements and Dominant Positions in the Directorate-General for Competition in the Commission from its President, who alone is entitled to represent the Association, a request pursuant to the combined provisions of Article 19(2) of Regulation No 17/62 (OJ, English Special Edition, 1959-1962, p. 87) and Article 5 of Regulation No 99/63 (OJ, English Special Edition, 1963-1964, p. 47) to be heard in the various proceedings initiated by the Commission against GEMA. It was stated in the telex message that the composers participated in the founding of GEMA and consequently had an interest in knowing what financial advantages they might expect from the proceedings initiated by the Commission. In particular, information was requested as to the effect of the proceedings on the social security arrangements of GEMA, on the cultural and artistic encouragement of contemporary composers of serious music and the role of bodies exploiting such compositions which, when drawing up their scale of charges, must make suitable allowance for the religious, cultural and social interests of persons paying royalties, as well as the interests of youth welfare.
The Director of the Directorate for Agreements and Dominant Positions replied to this request by a letter of 17 November 1970. He indicated that the question whether the Association had a sufficient interest within the meaning of Article 19(2) of Regulation No 17 could remain open. He pointed out that the President of the Association was also Chairman of the supervisory board of GEMA and as such had been informed and had been in a position to influence the attitude to be taken by the latter. Nevertheless, the letter continued, I hereby grant you a period of one month in Which to submit written observations on the said particular points. The Commission will consider these observations irrespective of the question whether the Deutscher Komponisten-Verband complies with the requirements of Article 19(2) of Regulation No 17. The letter concluded with the following assurance Thus, irrespective of any written observations which may be submitted by the Deutscher Komponisten-Verband the appropriate department is willing to hold a discussion with you in Brussels if you so desire. If you are interested in such a meeting may I ask you to suggest a date in the week of 7 to 11 December 1970? With regard to the specific points raised in the telex message of the Association it was further stated that the social security arrangements of GEMA were not called in question and that the aim of the proceedings was rather, by criticizing certain inadequacies, to strengthen the rights of composers. The encouragement of contemporary composers of serious music would not be affected, and indeed an endeavour would be made to improve the existing situation. Finally, the Commission would not dispute the scale of charges of GEMA, that is, the requirement that accounts be taken of religious, cultural and social interests and of youth welfare would not be called in question.
Nevertheless, the Association did not avail itself of the opportunity offered to it of submitting its observations. Instead it expressed itself thus in a letter of 12 December 1970 to the Director of the Directorate for Agreements and Dominant Positions: Neither with regard to procedure nor to content does your reply provide the requisite basis for the assertion by the Deutscher Komponisten-Verband of its interests in the proceedings pending before the Commission. The letter then maintains that the interests of the Association are not identical with those of GEMA, within the framework of which the Association represents only one of several groups. So far the Commission had not recognized the particular interests of composers, whose income could only be ensured with the assistance of GEMA. Finally, it was emphasized that observations could not be submitted upon so indefinite a procedural basis, and accordingly the Association made an express claim for a decision of the Commission in accordance with the second sentence of Article 19(2) of Regulation No 17 authorizing it to be heard.
The Director of the Directorate for Agreements and Dominant Positions replied to this with a letter of 17 December 1970 in which he emphasized that the President of the Association, as Chairman of the Supervisory Board of GEMA, had long been aware (as from 5 June 1970 and 22 July 1970) of the objections made to it and could have applied much earlier for a hearing. However, he specifically added: I hereby extend the period for submitting observations contained in my letter of 17 November 1970 until 18 January 1971. With regard to a decision of the Commission as to allowing the Association to participate in the procedure, it was stated that it had in this respect no legally protected interest after the opportunity of submitting observations has been granted.
As we have heard in the oral procedure, at the request of the representative of the Association conveyed in a telex message of 13 January 1971 the period fixed was again extended, this time until 1 February 1971, by letter of the Commission of 16 January 1971. Nevertheless, this period also elapsed without the Association's submitting any observations on the substance. Shortly before the expiry of the period, the lawyer appointed by the Association merely stated in a letter of 30 January 1971 that the Association was not satisfied with the opportunity of submitting observations other than in due form. The Association had a right to be heard and, in view of a series of specific points which were described, its interest rendered that right mandatory. Accordingly, he repeated the Association's application to be heard in the proceedings initiated against GEMA, in accordance with the second sentence of Article 19(2) of Regulation No 17. If a formal decision was not forthcoming it was indicated that the Association would avail itself of any judicial remedy open to it.
As a result of this on 12 March 1971 proceedings were initiated before the Court on the basis of Article 175 of the EEC Treaty. In its application the Association requested that the Commission should be ordered to grant it, within the framework of Proceedings IV/26.760 (GEMA), a formal right to be heard in accordance with the second sentence of Article 19(2) of Regulation No 7.
The Commission reacted to this by making a formal application in accordance with Article 91 of the Rules of Procedure, that is it requested a prior ruling on the admissibility of the application and claimed that it should be dismissed as inadmissible.
In accordance with the Commission s request the admissibility of the application was the sole problem considered in the oral procedure of 17 June 1971. Accordingly, I have also restricted myself in the following examination to considering whether the application of the Association meets the requirements of Article 175 of the EEC Treaty.
1. The Commission contests this, arguing primarily that the objective of the application is to obtain an order granting it the right to be heard, that is, to compel the Commission to perform an act. Such claims are not possible under Article 175, since only an action whose objective is to obtain a declaration of the Court is admissible.
2. Since no decisive objection as to admissibility can be derived from the wording of the application, it must further be considered whether the remaining conditions of Article 175 have been fulfilled. As the Court is aware, that provision states in its third paragraph that there must have been a failure to address [an] act to the applicant. With reference to the present case, which relates to the grant of the right to a hearing and therefore concerns a procedural measure, the present question of admissibility turns on whether proceedings of such a nature may be classified as an act. If an act is solely to be understood as a decision within the meaning of Article 189 of the EEC Treaty, that is to say, a statement which has until now been defined essentially by reference to the concept of an administrative measure, it in fact appears extremely doubtful whether an affirmative answer can be given to the question raised.
3. The Commission considers that this is plainly true with regard to the requirement that before an action is commenced the Commission must be called upon to act. It explains that according to the correct criteria this was lacking in the present case, and on this ground alone the action which has been initiated must be dismissed.
4. However, another matter gives rise to doubts as to admissibility. It follows from Article 175 of the Treaty that the right of action may be precluded by the behaviour of the institution before whom the matter has been brought after it had been called upon to act. This aspect must now be considered, without its being necessary to come to a final decision as to whether in the present case, as the Commission has suggested, a position was defined within the meaning of Article 175.
5. Accordingly, my opinion is as follows:
1 Translated from the German.
2 Cf. particularly Steindorff in Außenwirochaftsdienst del Betriebsrates 1963, p. 353.