On 15 September 2010, the European Court of Justice ("ECJ") published an order (dated 31 August 2010) with regard to an appeal by Artisjus Magyar Szerzöi Jogvédö Iroda Egyesület ("Artijus"), the Hungarian collecting society, against a decision of the General Court not to award interim measures with regard to Artisjus' appeal against the CISAC infringement decision. Artisjus had sought to have the operative part of the CISAC decision suspended pending the outcome of its appeal.
By way of reminder, the CISAC decision was a 2008 decision by the European Commission that the collecting societies that were members of CISAC had infringed Article 101(1) of the Treaty of the functioning of the European Union ("TFEU") by virtue of engaging in various anti-competitive reciprocal agreements. The majority of the affected collecting societies have lodged appeals against that decision.
Artisjus, and others, also applied for interim measures to suspend certain operative parts of the decision, including the obligation to take particular remedial steps. The General Court refused the application on the basis that interim measures were not required to prevent serious and irreparable damage. Artisjus appealed that decision to the ECJ, arguing that the General Court had breached the rules of procedure and/or misinterpreted the principle of urgency.
The ECJ, however, rejected Artisjus appeal on both grounds. With regard to the alleged breach of procedure, the ECJ found that the General Court had not inappropriately failed to cover an essential argument as put forward by Artisjus, namely that amending the reciprocal agreements as required by the remedial obligations would cause serious and irreparable damage as those changes would be virtually impossible to reverse should the Commission's decision be annulled. The ECJ considered that as long as the General Court's decision is reasoned and justifiable in the circumstances of the case, it is not necessary for that decision to respond explicitly to all arguments made by the parties. In this situation, it was reasonable for this particular proposition to have been ignored given that it was based on unsupported assertions about the potential actions of third parties.
In relation to Artisjus' assertion that the urgency criterion had been misinterpreted, the ECJ found that there had been no error in law which could be reviewed by the ECJ. Instead Artisjus' complaint lay with the method of the General Court's assessment of the evidence placed before it, and the value which should be attributed to that evidence. As noted above, Artisjus' assertions about the likelihood of third parties being unwilling to re-amend the reciprocal agreements were not only unsupported, but it could not be demonstrated to the required degree of absolute certainty that serious and irreparable damage would result.
This decision means that despite the pending appeal against the CISAC decision, the collecting societies must complete their amendments to the reciprocal agreements or risk the consequences of non-compliance with the Commission's order. It is hard, however, not to feel some sympathy for the smaller collecting societies, such as Artisjus. In the ever-evolving framework for copyright management in the EU, and the continued efforts to increase the degree of competition, it is Artisjus and its type that are destined to be the losers in the scramble to secure the lucrative arrangements with the major publishers. For all the stated good intentions to continue to support national music, it is inevitable that this commitment will erode when the collecting societies’ other sources of income dry up. Ultimately, it all comes back to the fundamental question of how the pursuit of full and free competition can be reconciled in a market where social and cultural factors pull in the opposite direction, and the need to protect those responsible for the existence of the industry - the composers and authors - can often be overlooked in favour of the larger commercial interests that have the wherewithal to shout the loudest.