B —During the oral procedure, which was opened on 13 November 1973, SABAM, the BRT, the Government of the Federal Republic of Germany and the Commission of the European Communities submitted oral observations.Me Dasesse, for SABAM, expressed the opinion that the Court should stay the proceedings in respect of a preliminary question when the appeal has the effect of1. bringing the main action before a higher court having jurisdiction as to the facts;2. giving the higher court jurisdiction to decide that the questions should no longer be referred;3. depriving the lower court of its authority to send additional information to the Court: Case 31/68, Chanel v Cepeha, opinion of Mr Roemer.He maintains that under Belgian law an appeal against the order for reference has such an effect.With regard to the effect of Article 9 (3) of Regulation No 17, he maintains, in support of the Commission, that the national court now lacks competence. Consequently, once the Commission has initiated a procedure in application of Article 86 of the Treaty the national authorities cease to be competent. All courts, even civil courts, are national authorities within the meaning of that provision: Case 43/69, Bilger (Rec. 1970, p. 127) and there is no further need to re-examine that finding: Case 48/72, Haecht II (Rec. 1973. p. 77). The fact that the Commission has initiated the procedure after the commencement of the first two main actions does not affect this conclusion.With regard to the substance of the preliminary questions he maintains that an authors' association must be considered as a union constituted for the defence of the rights of its members. The facts of this case demonstrate the erosion of copyrights which is caused by broadcasting companies requiring from authors a global assignment of their rights in a particular composition for a period of two years.He contends, finally, that the fact that a copyright association requires the exclusive assignment of all rights in all the works, both present and future, of an author where they fall into a particular category does not constitute an abuse of a dominant position.Me Denys, for the BRT, does not accept the argument of SABAM that an appeal brought against an order for reference has the effect, under Belgian law, of depriving the court making the reference of its competence.He invokes the Belgian constitution to refute the proposition that an administrative procedure can suspend proceedings before a civil court.He finds no legal basis in the Treaty capable of justifying the conclusions of SABAM and the Commission as to the interpretation of Article 9 (3).As to the substance of the questions he maintains that, rather than by a sub-division into categories, it is by the temporary assignment of his rights in a specific composition that an author can better protect his copyright.A finding that SABAM has abused its dominant position is inevitable since it recognized this itself in amending its statutes following the Commission's suggestions.Mr Seidel, for the Government of the Federal Republic of Germany, acting as agent, contests the argument of the Commission. He maintains that the Court in the Bilger Judgment merely wished to point out that the courts which have the duty of ensuring the implementation of procedures in the field of agreements are included in the category of national authorities within the meaning of Article 9 (3) and it did not wish to include therein the civil courts which have the task of protecting citizens against abuse. If it was not so, the direct effect of the rules of competition in the Treaty would be considerably reduced.If the civil court no longer had jurisdiction once the Commission has initiated a procedure in application of Article 85 or 86 of the Treaty it would not even be able to take interim measures. Moreover, Regulation No 17 does not contain any procedure serving to ensure that the national courts are informed of the fact that the Commission had initiated such a procedure.Consequently, he advocates a flexible system as defined by the Court in Haecht II, according to which the national court has the option of suspending the proceedings in order to enable the parties to refer the matter to the Commission.Mr van der Esch, Legal Adviser to the Commission, points out that in the Order in Case 31/68, Chanel, the Court stayed the proceedings for two reasons: the factual circumstances and the communication from the national court. That Judgment must be explained as meaning that the Court, having regard to the actual facts, had the impression that the order for reference might be quashed. In this case SABAM has based its appeal, inter alia, on the fact that, pursuant to Article 9 (3) of Regulation No 17, the national court lacks competence, a fact of which the Commission is also convinced.The Haecht II case only related to the situation where the Commission had not yet initiated a procedure. When there is no uncertainty as to whether the procedure has been initiated by the Commission the latter is of the opinion that, for the duration of the procedure, no national authority exercises a competence which is parallel to that of the Commission, which is temporary and exclusive. In its opinion, Article 9 (3) does not prevent the national court from taking an interim decision to maintain the status quo.The existence of the appeal and the temporary lack of jurisdiction of the national court leads him to suggest, in accordance with the principal ‘festina lente’, that the Court should suspend its decision. Nevertheless, he suggests that the Advocate-General should present his opinion in the meantime.While supporting the conclusions of the Commission in its statement, he adds several arguments in favour of the direct applicability of Article 90 (2):1. The general scheme of this provision is similar to the provisions of Articles 7, 85 and 86: they are provisions which govern all legal relations rationi personae.2. The obligations which flow from this provision are not conditional. Although the rules to be respected are complex, they are no more so than those of Articles 85 and 86.3. Individuals are obliged to respect the very complex provisions of the last sentence of Article 36, without there being any necessity for an intervention on the part of the Community: Case 78/70, Deutsche Grammophon (Rec. 1971, p. 487, 500).4. It emerges from a reading of Article 90 (2) and (3) as a whole, that the application of paragraph (2) can be ‘if necessary’ facilitated by an appropriate directive or decision addressed to Member States, but that the application of paragraph (2) does not in any way depend on the existence of such directive or decision.5. Articles 85 to 90 lay down the general rules applicable to undertakings: Case 6/72, Continental Can (Rec. 1973, p. 215, 246).6. The fact that Article 90 refers more specifically to Articles 85 to 94 inclusive does not exclude the fact that it refers to other provisions of the Treaty.Thus, in principle, ‘undertakings’ within the meaning of paragraph (2) must respect the provisions of the Treaty like all other undertakings.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.