Judgment — ECLI:EU:C:2024:289
Date: 2024-04-11
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-723/22 – 1 
Case C-723/22 
Request for a preliminary ruling 
Date lodged: 
24 November 2022 
Referring court: 
Oberlandesgericht München (Germany) 
Date of the decision to refer: 
24 November 2022 
Appellant: 
Citadines Betriebs GmbH 
Respondent: 
MPLC Deutschland GmbH 
  
OBERLANDESGERICHT MÜNCHEN (HIGHER REGIONAL COURT, 
MUNICH, GERMANY) 
[…] 
ORDER 
In the proceedings 
MPLC Deutschland GmbH, […] Wachenheim 
– applicant and respondent – 
[…] 
v. 
Citadines Betriebs GmbH, […] Eschborn 
– defendant and appellant – 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 24. 11. 2022 – CASE C-723/22 
 
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for breach of copyright ‘Wickie und die starken Männer [(‘Vic the Viking’)], 
season 1 episode 3 (Der Donnergott [(Thor’s Thunder)])’: 
on 24 November 2022, the 29th Civil Chamber of the Higher Regional Court, 
Munich, […] after hearing the parties on 24 November 2022, 
made the following order: 
I. The proceedings are […] stayed. 
II. The following question concerning the interpretation of  
– Article 3(1) of Directive 2001/29/EC of the European Parliament and 
of the Council of 22 March 2001 on the harmonisation of certain 
aspects of copyright and related rights in the information society (‘the 
InfoSoc Directive’)  
is referred to the Court of Justice of the European Union for a preliminary ruling 
in accordance with Article 267(2) TFEU: 
– Must Article 3(1) of the InfoSoc Directive be interpreted as precluding 
a national provision or practice according to which the provision of 
physical facilities for enabling or making a communication – such as 
television sets in hotel rooms or in hotel fitness rooms – is regarded as 
communication to the public when, while the transmission signal, in 
addition, is retransmitted to the physical facilities via the hotel’s own 
cable distribution system, that cable retransmission takes place 
lawfully on the basis of a licence acquired by the hotel? 
Grounds: 
The parties are in dispute before the referring court concerning whether the 
defendant, a hotel operator, has infringed the right of communication to the public 
of an episode of the television series ‘Wickie und die starken Männer’, which the 
applicant claims to hold, in that, due to its broadcast on a public-service television 
station, it could be seen in a hotel room and a fitness room on television sets 
provided by the defendant to which the defendant had lawfully retransmitted the 
transmission signal via a cable distribution system belonging to the hotel on the 
basis of a licence that it acquired. 
1. Legal framework 
a. European Union law 
The recitals of the InfoSoc Directive read, in extract, as follows: 
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(23) This Directive should harmonise further the author’s right of 
communication to the public. This right should be understood in a broad 
sense covering all communication to the public not present at the place 
where the communication originates. This right should cover any such 
transmission or retransmission of a work to the public by wire or wireless 
means, including broadcasting. This right should not cover any other acts. 
(27) The mere provision of physical facilities for enabling or making a 
communication does not in itself amount to communication within the 
meaning of this Directive. 
(32) This Directive provides for an exhaustive enumeration of exceptions 
and limitations to the reproduction right and the right of communication to 
the public. Some exceptions or limitations only apply to the reproduction 
right, where appropriate. This list takes due account of the different legal 
traditions in Member States, while, at the same time, aiming to ensure a 
functioning internal market. Member States should arrive at a coherent 
application of these exceptions and limitations, which will be assessed when 
reviewing implementing legislation in the future. 
The InfoSec Directive provides, inter alia: 
Article 1 
Scope 
(1) This Directive concerns the legal protection of copyright and related 
rights in the framework of the internal market, with particular 
emphasis on the information society. 
Article 3 
Right of communication to the public of works and right of making available 
to the public other subject matter 
(1) Member States shall provide authors with the exclusive right to 
authorise or prohibit any communication to the public of their works, 
by wire or wireless means, including the making available to the public 
of their works in such a way that members of the public may access 
them from a place and at a time individually chosen by them. 
b. National law 
Paragraph 15 of the Urheberrechtsgesetz (Law on Copyright and Related 
Rights, UrhG) reads, in extracts, as follows: 
REQUEST FOR A PRELIMINARY RULING OF 24. 11. 2022 – CASE C-723/22 
 
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(2) The author has the exclusive right to communicate his or her work to 
the public in non-material form (right of communication to the public). 
The right of communication to the public shall include, in particular: 
1. the right of recitation, performance and presentation (Paragraph 
19),  
2. the right of making work available to the public (Paragraph 19a), 
3. the right of broadcasting (Paragraph 20), 
4. the right of communication by video or audio recordings 
(Paragraph 21), 
5. the right of communication of broadcasts and of works made 
available to the public (Paragraph 22). 
Paragraph 20 of the UrhG provides: 
ʻRight of broadcastingʼ means the right to make a work available to the 
public by broadcasting, such as radio and television transmission, satellite 
transmission, cable transmission or by similar technical means. 
Paragraph 20b of the UrhG provides, inter alia: 
(1) The right to retransmit a work transmitted in the context of a 
simultaneous, unaltered and unabridged retransmission of a 
programme (retransmission) may be asserted only by a collecting 
society. This does not apply to 
1. rights in a work which is transmitted exclusively via the internet, 
2. rights asserted by a broadcasting organisation in relation to its 
own programmes. 
Paragraph 22 of the UrhG provides: 
ʻRight of communication of broadcasts and of works made available to the 
publicʼ means the right to make perceivable to the public, by screen, 
loudspeaker or similar technical device, broadcasts and communications of 
works that are based on their being made available to the public. Paragraph 
19(3) applies accordingly.  
2. Circumstances of the main proceedings 
a. The applicant, an independent, for-profit collecting society under German 
law, brought an action against the defendant, a hotel operator, to cease and 
desist the public broadcasting of an episode of the television series ‘Wickie 
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und die starken Männer’ by means of a broadcast via television sets installed 
by the defendant in the rooms and the fitness room of its hotel in Munich in 
so far as the transmission signal is transmitted to the television sets via 
coaxial or data cables. 
The action is based on an incident that occurred on 17 November 2019 at 
6.20 a.m. when a Mr. X and three other persons watched the episode 
broadcast by a public-service television broadcaster, as guests in their rooms 
on a television set provided by the hotel. Mr. X also watched the episode in 
the fitness area of the hotel. 
The receiving devices were not switched on by the defendant; the television 
signal was transmitted to the devices, simultaneously and unaltered, by the 
hotel’s own cable distribution system. The defendant had concluded 
comprehensive licensing agreements for cable retransmission with the 
German collecting societies. 
The defendant considers that it is entitled to make available free-to-air 
programmes broadcast on public-service television to its guests, on the 
television sets installed in the rooms and fitness area, on the basis of its 
licences for cable retransmission. 
In contrast, the applicant holds the view that the defendant has committed a 
copyright infringement, both with regard to the television sets installed in 
the rooms and the television set provided by it in the fitness area because its 
retransmission of the transmission signal via the hotel’s own cable 
distribution system interferes with the right of communication to the public. 
The fact that the defendant has clarified the issue of the right of cable 
retransmission with the collecting societies is irrelevant. 
b. The referring court is inclined to find that the national provisions 
transposing Article 3(1) of the InfoSoc Directive in Paragraph  22 of the 
UrhG and Paragraph  20b (1) of the UrhG, in conjunction with Paragraph 
15(2) Nos. 3 and 5 of the UrhG, when interpreted in a manner consistent 
with the directive, mean that, in view of recital 27, while the mere provision 
of physical facilities for enabling or making a communication does not in 
itself amount to communication to the public (see Court of Justice 
EU:C:2020:268 paragraph 35 – Stim and SAMI/Fleetmanager, 
EU:C:2006:764 paragraph 46 – SGAE), an interference with this right takes 
place nonetheless, due to the upstream retransmission of the signal to the 
receiving devices by means of the hotel’s own cable distribution system 
(Court of Justice EU:C:2006:764 paragraph 42 – SGAE – EU:C:2016:379 
paragraphs 47 and 54 – Reha Training). 
The concept of ‘communication to the public’ includes two cumulative 
criteria, namely, an ‘act of communication’ of a work and the 
communication of that work to a ‘public’ (Court of Justice EU:C:2017:218 – 
REQUEST FOR A PRELIMINARY RULING OF 24. 11. 2022 – CASE C-723/22 
 
6  
AKM; EU:C:2018:634 – Renckhoff EU:C:2019:1111 paragraphs 61 – 
Nederlands Uitgeversverbond). The user’s role and the deliberate nature of 
its action are central when it intervenes, in full knowledge of the 
consequences of its action, to give access to a broadcast containing the 
protected work to its customers, particularly where, in the absence of that 
intervention, its customers would not be able to enjoy the works broadcast, 
or would be able to do so only with difficulty (Court of Justice 
EU:C:2012:140 paragraph 82 – SCF, EU:C:2012:141 paragraph 31 – 
Phonographic Performance Ireland, EU:C:2017:456 paragraph 26 – 
Stichting Brein). 
The mere provision of receiving devices differs essentially from acts of 
communication by which service providers intentionally broadcast protected 
work to their clientele by additionally and intentionally distributing a signal 
by means of television or radio sets that they have installed in their 
establishment (Court of Justice EU:C:2020:268 paragraph 35 – Stim and 
SAMI/Fleetmanager, EU:C:2016:379 – paragraph 47 and 54 – Reha 
Training). 
c. However, in the present case, the referring court considers that the 
assumption that an ‘act of communication’ exists in accordance with the 
above-mentioned principles is called into question by the fact that the 
defendant’s conduct beyond the mere provision of receiving devices 
consisted only in the retransmission of the television signal via the hotel’s 
own cable distribution system, which the defendant was entitled to do on the 
basis of its undisputed licence granted by the collecting societies. Given that 
the concept of communication to the public within the meaning of 
Article 3(1) of the InfoSoc Directive is divided, in national law, into the 
right under Paragraph 20b of the UrhG (‘retransmission’) and the right under 
Paragraph 22 of the UrhG (‘right of communication of broadcasts’), it 
appears doubtful whether it may be concluded from a user’s conduct to 
which that user is entitled on the basis of a licence under Paragraph 20b of 
the UrhG, namely cable retransmission within the hotel, that the user 
intended to perform an ‘act of communication’ when that user’s conduct in 
all other respects comprises only the provision of receiving devices, which is 
not an infringement criterion. 
The view is taken in the context of Article 3(1) of the InfoSoc Directive that, 
in principle, the issue in question is not the lawfulness or unlawfulness of the 
source in the context of the act of communication […]. This appears to be 
problematic, however, because in the present case the separate evaluation of 
two aspects of communication to the public under Article 3(1) of the 
InfoSoc Directive would occur against the background of full harmonisation 
of collecting rights in the directive, which also lays down the binding upper 
limit of the level of protection (Court of Justice EU:C:2014:76 
paragraphs 37, 40 […]). 
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The referring court takes the view that the public character of the 
communication is established  in the present case because the guests of a 
hotel constitute a fairly large number of persons, such that they must be 
considered to be a new and distinct public since hotel guests quickly succeed 
each other, both in rooms and also in the fitness area (see Court of Justice 
EU:C:2006:764 paragraphs 38, 39, 42 – SGAE; EU:C:2012:141 
paragraphs 41, 42, 51 – Phonographic Performance Ireland). 
By the following question referred, the referring court asks the Court of 
Justice for its interpretation of Article 3(1) of the InfoSoc Directive. It does 
so because it has doubts concerning the existence of an ‘act of 
communication’ where the user of a protected work has a licence for the 
right to cable retransmission under national law and, in all other respects, its 
conduct is limited to the provision of receiving devices: 
Must Article 3(1) of the InfoSoc Directive be interpreted as precluding a 
national provision or practice according to which the provision of 
physical facilities for enabling or making a communication – such as 
television sets in hotel rooms or hotel fitness rooms – is regarded as 
communication to the public when, while the transmission signal, in 
addition, is retransmitted to the physical facilities via the hotel’s own 
cable distribution system, that cable retransmission takes place lawfully 
on the basis of a licence acquired by the hotel? 
[…]