Published on 22 May 2023

THIRD SECTION

Application no. 1048/18 Bulgarian National Radio against Bulgaria lodged on 20 December 2017 communicated on 3 May 2023

SUBJECT MATTER OF THE CASE

The case concerns a claim for damages which the applicant organisation, the Bulgarian National Radio, brought against Musicautor – an organisation for the collective management of copyrights – in January 2017.

In December 2011 the Bulgarian National Radio and Musicautor entered into a contract whereby the former was allowed to broadcast songs from the latter’s catalogue. In November 2016 Musicautor terminated that contract with effect from 1 January 2017 because the Bulgarian National Radio would not agree to an increase in the royalties it was paying under it, and forbade the Bulgarian National Radio to broadcast works from its catalogue.

In its claim, based on Bulgarian and European Union (EU) competition law, the Bulgarian National Radio alleged that by doing so Musicautor had abused its dominant market position.

In a decision of 12 April 2017 ( опр. № 2504 от 12.04.2017 г. по т. д. № 525/2017 г., СГС ) given without a hearing, on the papers, the Sofia City Court declared the claim inadmissible. It held that under Bulgarian law, in particular various provisions of the Competition Protection Act 2008, claims for damages related to abuse of dominant market position could not be brought as standalone claims, in the absence of a prior finding of such abuse by the Commission for the Protection of Competition, but only as follow-on claims, based on a decision by that Commission, which was binding on the courts examining a subsequent claim for damages in relation to the same competition-law breach. The court went on to say that in the absence of a decision by the Commission, the civil courts were not competent to examine for themselves whether an undertaking had committed a breach of competition law. The Bulgarian National Radio had asserted that EU law (in particular, Articles 101 and 102 of the Treaty on the Functioning of the European Union , and various provisions of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union and of Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty ) [1] required a possibility to bring such standalone claims, but the Sofia City Court disagreed. The case turned on the construction of those instruments, and especially the Directive, which at that time had still not been transposed by Bulgaria (it was later transposed by way of amendments to the Competition Protection Act 2008 which came into force in January 2018).

The Bulgarian National Radio appealed. In its appeal, it asked the Sofia Court of Appeal to make a preliminary reference to the Court of Justice of the European Union (CJEU) in relation to the correct interpretation of Article 9 § 1 of Directive 2014/104/EU read in conjunction with Articles 5 and 6 of Regulation (EC) No 1/2003: whether they prevented a national court from itself finding a breach of competition law in standalone proceedings for damages.

In a final decision of 20 June 2017 ( опр. № 2047 от 20.06.2017 г. по ч. гр. д. № 3016/2017 г., САС ), given again without a hearing, on the papers, the Sofia Court of Appeal dismissed the appeal, for reasons similar to those given by the Sofia City Court. The court went on to say that the matter had been settled in Bulgaria by a 2014 decision of the Supreme Court of Cassation ( опр. № 520 от 28.07.2014 г. по ч. т. д. № 4004/2013 г., ВКС, II т. о. ), and that there was nothing in Directive 2014/104/EU, even if it were directly applicable, which required that solution to be revisited. The court also held that the meaning of Article 9 of the Directive was abundantly clear and did not require interpretation. There was hence no need to make a preliminary reference to the CJEU. EU law did not require national law to permit standalone claims.

The Bulgarian National Radio complains under Article 6 § 1 of the Convention that the decision of the Sofia City Court, upheld on appeal by the Sofia Court of Appeal, to declare its claim for damages against Musicautor inadmissible unjustifiably deprived it of access to a court. It further complains under Article 6 § 1 of the Convention that the decisions of those courts were based on an arbitrary construction of the relevant provisions.

QUESTIONS TO THE PARTIES

1. Is the Bulgarian National Radio a “non-governmental organisation” within the meaning of Article 34 of the Convention (see Radio France and Others v. France (dec.), no. 53984/00, § 26, ECHR 2003-X (extracts); Österreichischer Rundfunk v. Austria , no. 35841/02, §§ 48-53, 7 December 2006; and MacKay and BBC Scotland v. the United Kingdom , no. 10734/05, §§ 18-19, 7 December 2010)?

2. Did the decision to declare the Bulgarian National Radio’s claim for damages inadmissible unjustifiably deprive it of access to a court, in breach of Article 6 § 1 of the Convention? In particular, did that decision pursue a legitimate aim and was it proportionate, due regard being had to, among other things, the respondent State’s margin of appreciation in regulating the right of access to a court and the existence or otherwise of a “European consensus” or a trend among the High Contracting States in relation to the possibility of bringing such standalone claims (on this latter point, see, in particular, these 2004 and 2016 comparative-law surveys: Ashurst, Study on the conditions of claims for damages in case of infringement of EC competition rules (at pp. 32-33), and Baker & McKenzie, Global Guide to Competition Litigation )?

[1] . Articles 101 and 102 of the Treaty on the Functioning of the European Union are ex Articles 81 and 82 of the Treaty establishing the European Community .