Judgment;Summary — ECLI:EU:C:2023:307
Date: 2023-04-20
Language of the case: Romanian
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: Romania

Summary C-775/21 – 1 
Case C-775/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
15 December 2021 
Referring court: 
Curtea de Apel București (Romania) 
Date of the decision to refer: 
12 November 2020 
Appellant (defendant at first instance): 
Blue Air Aviation SA 
Respondent (applicant at first instance): 
UCMR – ADA Asociația pentru Drepturi de Autor a 
Compozitorilor 
  
Subject matter of the main proceedings 
Appeal brought before the Curtea de Apel București (Court of Appeal, Bucharest, 
Romania; ‘the Curtea de Apel’) against the judgment of the Tribunalul București 
(Regional Court, Bucharest, Romania) which upheld an action for damages for an 
amount equivalent to the remuneration allegedly due for a communication to the 
public of musical works 
Subject matter and legal basis of the request 
An interpretation of Directive 2001/29/EC of the European Parliament and of the 
Council, in particular Article 3(1) thereof, is sought pursuant to Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Must Article 3(1) of Directive 2001/29/EC of the European Parliament and 
of the Council of 22 May 2001 on the harmonisation of certain aspects of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-775/21 
 
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copyright and related rights in the information society be interpreted as 
meaning that the broadcasting, inside a commercial aircraft occupied by 
passengers, of a musical work or a fragment of a musical work on take-off, 
on landing or at any time during a flight, via the aircraft’s public address 
system, constitutes a communication to the public within the meaning of that 
provision, particularly (but not exclusively) in the light of the criterion 
relating to the profit-making objective of the communication? 
If the answer to the first question is in the affirmative: 
2. Does the existence on board the aircraft of an address system required by air 
traffic safety legislation constitute a sufficient basis for making a rebuttable 
presumption as to the communication to the public of musical works on 
board that aircraft? 
If the answer to that question is in the negative: 
3. Does the presence on board the aircraft of an address system required by air 
traffic safety legislation and of software which enables the communication 
of phonograms (containing protected musical works) via that system 
constitute a sufficient basis for making a rebuttable presumption as to the 
communication to the public of musical works on board that aircraft? 
Provisions of European Union law relied on 
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 
2001 on the harmonisation of certain aspects of copyright and related rights in the 
information society (‘the Copyright Directive’) (recital 27 and Article 3) 
Provisions of national law relied on 
Legea nr. 8/1996 privind dreptul de autor și drepturile conexe (Law No 8/1996 
on copyright and related rights) 
Article 1312 
… 
(2) The agreement of the parties on the negotiated methodologies shall be 
recorded in a protocol to be deposited with the Oficiul Român pentru Drepturile 
de Autor (Romanian Copyright Office). […] The methodologies thus published 
shall be effective against all users in the sector in respect of which they have been 
negotiated and against all importers and producers of media and equipment in 
respect of which a copyright levy is due under Article 107. 
Codul de procedură civilă (Code of Civil Procedure) 
BLUE AIR AVIATION 
 
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Article 329 
In the case of presumptions left to the scrutiny and discretion of a court, that court 
may rely on them only if they have the weight and force to establish the 
probability of the presumed fact; however, they shall be admissible only in cases 
where the law permits witness evidence. 
Metodologia privind remunerațiile cuvenite titularilor de drepturi 
patrimoniale de autor de opere muzicale pentru comunicarea publică a 
operelor muzicale în scop ambiental (Methodology concerning the 
remuneration due to the holders of economic copyrights in musical works for 
the communication to the public of musical works as background music) (the 
‘Methodology concerning remuneration’) 
1. A person using musical works as background music shall be required, prior 
to any use of musical works, to obtain from the [Uniunea Compozitorilor și 
Muzicologilor din România – Asociația pentru Drepturi de Autor a 
Compozitorilor (Union of Composers and Musicologists of Romania – 
Association for the Copyright of Composers) (‘the UCMR–ADA’)] a non-
exclusive authorisation (licence) for the use of musical works and to pay 
remuneration according to the table set out in this methodology, irrespective of the 
actual duration of the use. 
2. For the purposes of this methodology, the following terms and expressions 
shall have the following meanings: 
(a) ‘communication to the public of musical works as background music’ shall 
mean the communication of one or more musical works effected in a place open to 
the public or in any place where a number of persons outside the usual circle of 
family and acquaintances meet or to which they have access, simultaneously or 
successively, regardless of the manner in which the communication is made and 
the technical means used, for the purpose of creating background music for the 
performance of any other activity which does not necessarily require the use of 
musical works; 
(b) ‘a person using musical works as background music’ shall mean any 
authorised legal or natural person holding or using in any way (ownership, 
management, concession, letting, subletting, lending, and so on) premises, 
whether closed or open, where systems and any other technical or electronic 
means such as televisions, radios, cassette players, stereo systems, computer 
equipment, CD players, amplification systems, and any other equipment which 
enables the reception, reproduction or broadcast of sound or images accompanied 
by sound, are installed or held. 
[…] 
6. For the period during which a person using musical works as background 
music does not have a non-exclusive authorisation (licence) granted by the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-775/21 
 
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UCMR–ADA, that person shall be obliged to pay to the UCMR–ADA an amount 
equivalent to three times the remuneration that would have been legitimately due 
had that person had a non-exclusive authorisation (licence). 
7. Collective management organisations may monitor, through duly authorised 
representatives, the use of musical works as background music; those 
representatives shall have free access to any place where music is used as 
background music. Representatives of collective management organisations may 
use portable audio and/or video recording equipment in the premises where the 
musical works are used, and the recordings thus made shall constitute full proof of 
the use of the musical works as background music. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 22 April 2015, Blue Air Aviation SA (formerly Blue Air – Airline 
Management Solutions SRL) (‘Blue Air’) informed [the UCMR–ADA] that it 
owned 14 aircraft in which it intended to use (communicate to the public) music 
as background music, and asked to be issued an authorisation (a licence) for this 
purpose. 
2 Following that request, an agreement was concluded between the parties for the 
grant of a non-exclusive licence (non-exclusive authorisation) for the use of 
musical works as background music for 14 aircraft, and a monthly remuneration 
of 2 800 Romanian lei (RON), plus VAT, was agreed. The authorisation was 
initially issued for the period from 1 May 2015 to 31 December 2015 and was 
subsequently extended. 
3 On 2 March 2018, the UCMR–ADA brought before the Tribunalul București 
(Regional Court, Bucharest) an action against Blue Air seeking payment of certain 
remuneration, claiming that, although a non-exclusive authorisation (licence) had 
been granted in respect of some Blue Air aircraft, Blue Air was communicating to 
the public musical works in a greater number of aircraft than that for which it had 
obtained a non-exclusive licence in accordance with the law, and that those 
communications were not authorised and, as such, were subject to payment of 
compensation. 
4 Blue Air stated that it operates 28 aircraft equipped with address systems which 
enable voice communication between cockpit crew and cabin crew, as well as 
with passengers, and that the presence of those address systems is required by the 
regulations applicable to commercial aviation. It maintains that around 22 aircraft 
have also been equipped with a software program which enables musical works to 
be communicated in the background (in the cabin of the aircraft), but states that it 
communicated to the public only one piece of music in 14 aircraft. The case file 
contains no further proof concerning the communication of music as background 
music in the cabin of passenger aircraft. 
BLUE AIR AVIATION 
 
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5 On 8 April 2019, the Tribunalul București upheld the action and ordered Blue Air 
to pay the amount of RON 201 336, equivalent, under paragraph 6 of the 
Methodology concerning remuneration, to three times the remuneration due for 
the communication to the public of musical works in aircraft in respect of which 
no non-exclusive authorisation (licence) has been granted. The Tribunalul 
București justified its reasoning as follows: ‘the equipping of means of transport 
with devices enabling the communication to the public of musical works as 
background music gives rise to a rebuttable presumption of use, and it must be 
concluded that any aircraft equipped with an address system uses such a device 
for such communication to the public, without any further proof being necessary 
in that regard’. 
6 Blue Air lodged an appeal against the judgment of the Tribunalul București before 
[the Curtea de Apel]. 
The essential arguments of the parties in the main proceedings 
7 The UCMR–ADA bases its claims on the situations set out by the airline itself, 
taking the view that the address systems with which the aircraft are equipped 
justify a rebuttable presumption as to the communication of musical works, a 
presumption which was also expressly accepted by the court of first instance. 
8 By its appeal, Blue Air challenges the judgment of the Tribunalul București, 
claiming, firstly, there is no proof of the communication to the public of musical 
works in the aircraft to which the judgment under appeal relates, and that the 
presumption applied by the court of first instance does not satisfy the conditions 
laid down in Article 329 of the Code of Civil Procedure since it is not based on 
circumstances capable of establishing a sufficient probability. Blue Air claims, in 
particular, that the existence of address systems inside aircraft is dictated by safety 
reasons relating to communication between members of the air crew (pilot/co-
pilot to flight attendants) and communication between that crew and passengers, 
and that the mere existence of those systems cannot be equated with the 
communication itself. Secondly, Blue Air raises a criticism in law, claiming that 
the criterion relating to the profit-making objective is not satisfied, recalling in 
that regard the judgment of 4 October 2011, Football Association Premier League 
and Others, C-403/08 and C-429/08, paragraphs 205 and 206. 
9 Blue Air has requested that a question be referred to the Court of Justice of the 
European Union (‘the Court’) for a preliminary ruling. 
10 According to the forms of order sought by the UCMR–ADA, on conclusion of the 
debate regarding Blue Air’s request that a reference be made to the Court, the 
criterion relating to the making of profit is relevant only in the case of related 
rights, and not also in the case of copyright, in respect of which the Copyright 
Directive and national legislation confer on the holder the exclusive right to 
authorise or prohibit communication, and not merely a right to fair remuneration 
as in the case of related rights. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-775/21 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
11 In the context of the appeal pending before the referring court, the first question to 
be resolved is a factual one, that is to say, whether or not the existence of acts of 
communication to the public (in aircraft for which there is no licence), which is 
denied by Blue Air, can be regarded as demonstrated. Only if the answer is in the 
affirmative does a subsequent legal issue arise, namely whether the 
communication in the background of a piece of music on an aircraft constitutes an 
act of communication to the public within the meaning of the Copyright Directive, 
in particular in the light of the criterion relating to the profit-making objective of 
the communication. 
12 Conversely, in the context of the reference to the Court, the latter question 
prevails. It is first necessary to clarify whether or not, in law, such a 
communication in the background falls within the scope of Article 3 of the 
Copyright Directive given that the national implementing provisions must be 
interpreted in accordance with the objectives and scheme of that directive. Only if 
the answer is in the affirmative does the subsequent question arise as to the 
standard of proof that must be used in assessing whether or not the 
communication of music as background music took place. Otherwise, if the 
communication of music as background music does not constitute an act of 
communication to the public, the claims for payment of remuneration for such an 
act are in any event unfounded in law and the concrete proof of the 
communication in the background becomes irrelevant. 
13 The referring court recalls the case-law of the Court according to which a 
deliberate act of communication of a work to a new public constitutes a 
communication to the public for the purposes of the Copyright Directive and, in 
the context of the assessment of whether or not there is an act of communication 
to the public, a relevant criterion is the profit-making nature of the communication 
(judgment of 4 October 2011, Football Association Premier League and Others, 
C-403/08 and C-429/08, paragraphs 203 to 206). 
14 In the light of the judgment of 7 December 2006, SGAE, C-306/05, paragraphs 44 
to 46, the referring court concludes that, if the flight operator were to offer 
passengers systems allowing them individually to access musical works or works 
of intellectual creation in general (for example, touch screens, radio sets, devices 
with headphones making it possible to select certain audio-visual or musical 
works), such a service would constitute a communication to the public and would 
undoubtedly be offered with the aim of increasing the commercial attractiveness 
of the flight and thus with the aim of making a profit. 
15 In the present case, the profit-making nature of the communication is highly 
debatable in the case of the offer of pieces of music as background music, 
throughout the passenger cabin, on take-off, on landing, or at a specific time 
during the flight. In such a case, it is difficult to presume that a potential customer 
chooses a particular airline in the hope of listening to music during certain periods 
BLUE AIR AVIATION 
 
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of the flight since the relevant criteria for selecting a flight are different, such as 
the price, the time and the duration of the flight, services such as luggage 
facilities, fast boarding, catering, the products offered on board, and so on. 
16 The referring court goes on to recall, to that effect, the judgment of 15 March 
2012, SCF, C-135/10, paragraphs 97 to 101, stating, with regard to the present 
case, that the passengers of an airline expect to be transported safely, on time and 
in reasonable comfort, and that the fact that they benefit, by chance and without 
any active choice on their part, from listening to certain pieces of music 
communicated in the background is not likely to influence their choice of one air 
carrier over another. In conclusion, as regards the profit-making nature, the 
referring court considers, as a preliminary point, that it cannot be deemed to exist 
in the case of the broadcasting of music in the background inside the cabin of an 
aircraft in order to create a sense of relaxation at times such as before take-off or 
after landing. On the other hand, it is stated that the profit-making nature is 
evident in the case of a rehabilitation centre where patients go for long periods of 
waiting and treatment and that the broadcasting of certain television programmes 
provides them with greater comfort (judgment of 31 May 2016, Reha Training, 
C-117/15, paragraph 63). 
17 The Curtea de Apel considers, on the other hand, that the other relevant criteria 
according to the case-law of the Court (the existence of a new public which is 
sufficiently large with regard to the de minimis criterion (see also judgment of 
13 February 2014, Svensson, C-466/12, paragraph 21) and the intention to make 
the musical content accessible to that public) appear to be satisfied in the present 
case, but nevertheless considers it appropriate for them also to be subject to the 
Court’s analysis in its overall assessment of the first question raised. 
18 As regards the interpretation of the UCMR–ADA, according to which the criterion 
relating to the making of profit is relevant only in the case of related rights and not 
also in the case of copyright, the referring court refers to the case-law of the Court 
(judgments of 7 December 2006, SGAE, C-306/05; of 15 March 2012, SCF, 
C-135/10, paragraphs 88 and 89; and of 15 March 2012, Phonographic 
Performance (Ireland), C-162/10, paragraph 36), observing that the criterion 
relating to the profit-making nature is relevant to the assessment of 
communication to the public both in the case of copyright and, a fortiori, in the 
case of related rights. 
19 The referring court observes that the right to authorise or prohibit is laid down in 
an almost identical manner by the Copyright Directive as regards copyright 
(Article 3(1)) and related rights (Article 3(2)) and that therefore the interpretation 
according to which the criterion relating to the making of profit must have a 
similar weight in the assessment of communication to the public also in the case 
of copyright appears to be more well founded. The nuance resulting from the 
considerations set out in the abovementioned decisions, from which it appears that 
greater weight can be given to the profit-making objective in the case of related 
rights, will be subject to the Court’s assessment in the present case. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-775/21 
 
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20 As regards the standard of proof which must be used when assessing whether or 
not there has been a communication of music as background music, the practice of 
the national courts is that, in so far as the operator carrying on a specific economic 
activity or operating a means of transport is listed in the methodologies agreed 
between collective management organisations and associations of users, a 
rebuttable presumption is made that, at the place in question, copyright-protected 
works are communicated to the public. Account is taken of the fact that, under 
Article 1312(2) of Law No 8/1996, those methodologies are effective against all 
users in the sector in respect of which they have been negotiated. There are also 
practical reasons underlying this presumption since it is essentially impossible for 
collective management organisations systematically to monitor all the places 
where acts of use of works of intellectual creation could take place. 
21 On the other hand, case-law assesses the necessary standard of proof differently 
and there are three lines of case-law. The referring court considers that the 
following are correct: (1) the line of case-law according to which the presumption 
is rebutted in the case of relevant and credible defences, bearing in mind that the 
burden of actually proving the existence of acts of use lies with the collective 
management organisation, and (2) the line of case-law according to which the 
presumption of use deriving from the existence of address systems is corroborated 
only by the presence of further proof (documents issued by the certifying 
authorities, partial admission made by the party concerned, and so on). 
22 The Curtea de Apel further observes that according to recital 18 thereof, the 
Copyright Directive is without prejudice to the arrangements in the Member 
States concerning the management of rights but emphasises that the particularities 
of a national collective management regime, such as the flat-rate methodologies 
used in Romania, cannot alter the uniform interpretation and application of 
Article 3 of the Copyright Directive. The principal objective of the directive in 
question, which is to harmonise the provisions of national law on the legal content 
of copyright to guarantee legal certainty, would be compromised if a coherent and 
uniform interpretation of what does and does not constitute communication to the 
public were not adopted. 
23 Therefore, the relevant and contested facts constitute the subject matter of the 
proof and if the UCMR–ADA claims that there have been acts of communication 
to the public in aircraft for which Blue Air did not have a licence, it must prove 
the existence of those acts. In that regard, reference is made to paragraph 7 of the 
Methodology concerning remuneration. Mere acceptance of the claims of the 
applicant at first instance would turn the remuneration due to authors into a 
genuine charge due solely on account of the existence of a means of transport 
equipped with ordinary and compulsory technical devices. Such a legal 
classification would divert copyright and the remuneration due for the use of 
works of intellectual creation from their intended purpose. 
24 In the view of the referring court, the answer to the second and third questions 
must be in the negative. The Curtea de Apel states that equipping Blue Air aircraft 
BLUE AIR AVIATION 
 
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with address systems or even software systems which enable the communication 
in the background of music throughout the passenger cabin – not on the individual 
initiative of the passengers but following a decision of the crew – cannot be 
treated as an act of communication to the public and cannot constitute a sufficient 
basis for making a rebuttable presumption as to communication to the public of 
musical works on board the aircraft in question, if there are no further consistent 
and convincing items of evidence or clues attesting to the existence of such acts of 
communication.