On 19/03/2015, the Board of the Portuguese Competition Authority (AdC) determined, pursuant to article 8(1) and article 17(1) of Law no. No. 19/2012, of 8 May, the opening of an enquiry in a misdemeanour proceeding to investigate possible competition restrictive practices carried out by GDA - Cooperativa de Gestão dos Direitos dos Artistas, Intérpretes ou Executantes, C.R.L. (GDA) in the field of related rights (to copyright) of performers (hereinafter, "related rights of performers").
These practices would result in the possible application of excessive prices and discriminatory tariffs by GDA in the framework of the wholesale service of collective marketing of related artists' rights (hereafter 'the wholesale service under scrutiny').
During the investigation phase, the AdC investigated and assessed the described practices in light of Article 11 of Law no. 19/2012 of 8 May and Article 102 of the Treaty on the Functioning of the European Union (TFEU).
In particular, the AdC's analysis has found that:
1. GDA has, since its creation (on 28.11.1995), been the monopolist in the wholesale market for the collective marketing of artists' rights and this allows, in principle, for the conclusion that GDA holds a dominant position in the relevant market concerned, without prejudice to indications that the providers of the retail pay-TV signal access service have some countervailing bargaining power that could be expected to counterbalance GDA's bargaining power;
2. it is not possible to conclude that there are indications that the prices associated with the wholesale service under analysis applied by GDA are excessive, since those prices are lower than the prices charged, in Portugal, for similar services and the prices charged for the same service in other countries; and
3. it is not possible to conclude that the application by GDA of unequal conditions (tariffs) to equivalent services has resulted in a practice of discrimination (under the terms of the applicable law), since it has not been established that a certain provider of the retail pay-TV signal access service is likely to be put at a competitive disadvantage in relation to another, given the reduced relevance of the representativity of the costs arising from the wholesale service under analysis in the costs, revenues and profitability associated to that retail service.
Therefore, the AdC concluded that the facts concerning the behaviours subject matter of PRC-2015/07, supported by the elements contained in the respective files, do not constitute sufficient evidence of practices prohibited, in particular, by article 11 of Law no. 19/2012, of 8 May, not existing grounds, nor being met the conditions for, under the provisions of article 24(3)(a) of Law no. 19/2012, of 8 May, to proceed with the opening of an investigation within PRC-2015/07.
The AdC also considered that the conditions for prohibition set by article 102 of the TFEU were not met in the scope of PRC-2015/07, and the intervention of the AdC under that legal provision was not justified.