On 27 September 2010, the General Court published an order (dated 8 September 2010) with regard to an application by the Performing Rights Society (“PRS”) for certain submissions to be treated confidentially in the context of its appeal against the European Commission’s 2008 CISAC infringement decision. This is the second decision in the last few weeks in the ongoing CISAC litigation and appeals (see GTM Alert 13/10 on the decision not to award interim measures to Artijus).  

In 2008 the European Commission found 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.  

The PRS, the English collecting society, has been supported in its appeal by its Spanish equivalent, Sociedad General de Autores y Editores (“SGAE”). There have, however, also been interventions by third parties in support of the Commission - most notably from RTL Group SA and Music Choice Europe Ltd, the original source of the complaint to the Commission against the CISAC members, as well as the International Federation of the Phonographic Industry (“IFPI”). The PRS applied for certain of the information submitted in support of its appeal, as well as aspects of the Commission’s defence and its reply to that defence to treated as confidential and not released to the interveners. The IFPI objected to that application. Under the Court’s rules of procedure, interveners have a right of access to all documents submitted in the case, unless the President of the Court agrees to omit certain information as being secret or confidential  

An application for confidentiality must be upheld if it is not disputed. As such, the application was granted with regard to the other interveners. With regard to IFPI, the President had to decide whether the information was secret or confidential and, if so, whether the legitimate concern of PRS to protect harm to it is interests outweighed IFPL’s legitimate concern that it has access to the information necessary to exercise its procedural rights.  

The Court’s decision on confidentiality varied across the different documents and information for which it was claimed. In some respects the Court concluded that IFPL had not given sufficiently explicit reasons as to why it objected to the withholding of certain information, so the application for confidentiality was granted. Two other documents, deemed confidential in nature, were not considered directly relevant to the case so it was not necessary to disclose them in order to satisfy IFPL’s procedural rights. One document, however, which PRS had sought to protect, was deemed too old to have any residual commercial value, so could be disclosed. From one perspective, this decision simply reflects traditional pre-trial skirmishing before the European

Courts. From another, it is an indication of how convoluted this CISAC litigation is turning out to be. Frequently, challenges to Commission measures are very much two-sided affairs with the Commission in the “red corner” and the challenger in the “blue corner” with the occasional cheerleader support on one side or the other. The CISAC appeals are by no means so simple with entire industries and traditions ranged against each other in a complicated strategic game. This decision means that one intervener has some information from PRS that has not been made available to the other interveners - hardly likely to make this case any easier?