Judgment;Summary — ECLI:EU:C:2025:551
Date: 2025-07-10
Language of the case: Romanian
Court formation: Sixth Chamber
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-37/24 – 1 
Case C-37/24 
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: 
19 January 2024 
Referring court: 
Curtea de Apel București (Romania) 
Date of the decision to refer: 
23 May 2023 
Applicant at first instance and appellant on appeal: 
Uniunea Producătorilor de Fonograme din România (UPFR) 
Defendant at first instance and appellant on appeal: 
DADA Music SRL 
Intervener at first instance and respondent on appeal: 
Asociația Radiourilor Locale și Regionale (ARLR) 
  
Subject matter of the main proceedings 
Appeals brought before the referring court, the Curtea de Apel București (Court of 
Appeal, Bucharest), against the judgment by which the Tribunalul București 
(Regional Court, Bucharest) dismissed in part an action seeking an order for 
payment of certain outstanding remuneration, in a dispute between the Uniunea 
Producătorilor de Fonograme din România (Romanian Phonogram Producers 
Union; ‘the UPFR’) and SC DADA Music SRL (‘DADA Music SRL’). 
Subject matter and legal basis of the request 
On the basis of Article 267 TFEU, the referring court seeks the interpretation of 
Article 8(2) of Directive 2006/115/EC of the European Parliament and of the 
Council of 12 December 2006 on rental right and lending right and on certain 
rights related to copyright in the field of intellectual property (‘Directive 
EN 
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2006/11[5]’) and of the second paragraph of Article 16(2) of Directive 
2014/26/EU of the European Parliament and of the Council of 26 February 2014 
on collective management of copyright and related rights and multi-territorial 
licensing of rights in musical works for online use in the internal market 
(‘Directive 2014/26’), read in conjunction with Articles 17 and 52 of the Charter 
of Fundamental Rights of the European Union. 
Questions referred for a preliminary ruling 
Must Article 8(2) of Directive 2006/115/EC and the second paragraph of 
Article 16(2) of Directive 2014/26/EU, read in conjunction with Articles 17 and 
52 of the Charter of Fundamental Rights of the European Union, be interpreted as 
meaning that they: 
(1) preclude national legislation which does not guarantee a minimum (flat-rate) 
equitable remuneration for rightholders (phonogram producers), represented by 
collective management organisations, irrespective of the revenues obtained or the 
costs incurred by broadcasting organisations? 
(2) If the first question is answered in the negative, do those articles preclude 
national legislation which abolishes, with immediate effect, the minimum (flat-
rate) remuneration determined on the basis of a methodology previously 
negotiated between the collective management organisation and the users, without 
altering the criteria for calculating remuneration and without providing for a 
maximum period for negotiating new agreements (methodologies) for quantifying 
equitable remuneration? 
(3) If the first two questions are answered in the negative, is the national court 
entitled and, if so, required to ascertain whether the remuneration percentages 
calculated in relation to the actual revenues declared by broadcasting 
organisations are equitable and reasonable for rightholders, on the one hand, and 
users, on the other, or, on the contrary, whether they are manifestly derisory or, as 
the case may be, manifestly excessive, and what are the criteria that may be used 
for the purposes of such an assessment? 
(4) If the third question is answered in the affirmative, if the national court finds 
that the remuneration due under the methodology amended by the new national 
legislation is derisory, is that court entitled and/or required to apply criteria other 
than that of declared revenue – such as, for example, the determination of 
remuneration on the basis of the costs incurred by broadcasters in respect of the 
broadcasting activity, the remuneration paid by similar broadcasters, or other 
similar criteria – in order to ensure that rightholders receive appropriate 
remuneration, without prejudice to the legitimate interests of users, that is to say, 
without being derisory, but also without being unduly burdensome for 
broadcasting organisations? 
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Provisions of European Union law and case-law relied on 
Article 8(2) of Directive 2006/115/EC of the European Parliament and of the 
Council of 12 December 2006 on rental right and lending right and on certain 
rights related to copyright in the field of intellectual property. 
Second paragraph of Article 16(1) of Directive 2014/26/EU of the European 
Parliament and of the Council of 26 February 2014 on collective management of 
copyright and related rights and multi-territorial licensing of rights in musical 
works for online use in the internal market. 
Articles 17 and 52 of the Charter of Fundamental Rights of the European Union. 
Judgment of 19 November 1991, Francovich and Bonifaci v Italy, Joined Cases 
C-6/90 and C-9/90, EU:C:1991:428; judgment of 5 October 2004, Pfeiffer and 
Others, Joined Cases C-397/01 to C-403/01, EU:C:2004:584; judgment of 
18 January 2022, Thelen Technopark Berlin, C-261/20, EU:C:2022:33. 
Provisions of national law relied on 
Articles 112, 145, 164 and 166 of Legea nr. 8/1996 privind dreptul de autor și 
drepturile conexe, republicată în Monitorul Oficial al României, Partea I, nr. 489 
din 14 iunie 2018 (Law No 8/1996 on copyright and related rights, as republished 
in Monitorul Oficial al României, Part I, No 489, of 14 June 2018; ‘Law 
No 8/1996’). 
Article 112 provides, in paragraph 1, for the right to equitable remuneration of 
performers and phonogram producers for the direct or indirect use of phonograms 
published for commercial purposes or the reproduction of such phonograms by 
broadcasting or any other means of communication to the public, and, in 
paragraph 2, that the amount of such remuneration is to be determined using 
methodologies in accordance with the procedures provided for in Articles 163 to 
165. 
Article 145(1)(c) and (d) lay down the mandatory nature of collective 
management for the exercise of the right to broadcast musical works and the right 
to single equitable remuneration. 
Article 164 of Law No 8/1996 sets out, in paragraph 1, the main criteria to be 
taken into account in the negotiation of the methodology, and, in paragraphs 2 and 
3, provides as follows: 
‘2. In the context of the negotiations, collective management organisations may 
require, from the same category of users, either flat-rate remuneration, or 
percentage remuneration established as a percentage share of the revenue received 
by each user from the activity in which the repertoire is used or, in the absence of 
revenue, the costs generated by the use. For broadcasting activity, collective 
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management organisations may require percentage remuneration only, 
differentiated in direct proportion to the extent of use by each user – broadcasting 
organisation – of the repertoire collectively managed in the context of that 
activity. 
3. The remuneration referred to in paragraph 2 shall be reasonable in relation to 
the economic value and the extent of the use of the rights at issue, taking into 
account the nature and scope of the use of the work and other subject matter, as 
well as in relation to the economic value of the service provided by the collective 
management organisation. Collective management organisations and users must 
give reasons for the method for calculating such remuneration.’ 
Article 166 of Law No 8/1996 provides as follows:  
‘1. Collective management organisations, users or user associations referred to in 
Article 163(3)(b) and (c) may submit a new request to initiate the procedures for 
negotiating tariffs and methodologies only after the expiry of a period of three 
years from the date of their publication in final form in Monitorul Oficial al 
României, Partea I. 
2. In the case of the negotiations referred to in Article 114(4), any of the parties 
concerned may submit a new request to initiate the procedures for negotiating the 
methodologies only after the expiry of a period of three years from the date of 
their publication in final form in Monitorul Oficial al României, Partea I. 
3. Until the new methodologies are published, the previous methodologies shall 
remain valid’. 
Metodologia privind remunerația datorată artiștilor interpreți sau executanți și 
producătorilor de fonograme pentru radiodifuzarea fonogramelor publicate în 
scop comercial ori a reproducerilor acestora de către organismele de 
radiodifuziune (Methodology concerning the remuneration payable to performers 
and phonogram producers for the broadcasting of phonograms published for 
commercial purposes or the reproduction of such phonograms by broadcasting 
organisations) established in its final form by Decizia civilă nr. 153A/12 mai 2011 
a Curții de Apel București, Secția a IX-a civilă și pentru cauze de proprietate 
intelectuală (judgment No 153 of 12 May 2011, Court of Appeal (Division IX – 
Civil and Intellectual Property Cases), Bucharest), on the basis of Decision 
No 216/2011 issued by the Oficiul Român pentru Drepturile de Autor (ORDA) 
(Romanian Copyright Office) (‘the remuneration methodology’), which provides 
that: 
‘4. Broadcasting organisations, referred to as users within the meaning of this 
methodology, shall pay on a quarterly basis to the collective management 
organisations designated by ORDA as collectors for performers and phonogram 
producers remuneration for the economic rights associated with the use of 
commercial phonograms or reproductions of such phonograms, determined by 
applying a percentage, as indicated in the following table, to the basis of 
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calculation provided for in point 5 of the methodology, for each radio broadcaster 
owned. 
Extent of the use of commercial 
phonograms in programmes 
Performers and phonogram producers 
Up to and including 35% 1.8% 
More than 35%, up to and including 
65% 
2.4% 
More than 65% 3% 
 
Broadcasting organisations shall pay on a quarterly basis to the collective 
management organisations designated by ORDA as collectors for performers and 
phonogram producers remuneration in respect of the economic rights associated 
with the use of phonograms published for commercial purposes or reproductions 
of such phonograms, calculated by applying to the total monthly gross revenue 
from broadcasting activities a percentage of 3% in the case of use of phonograms 
for 100% of the total broadcasting time of the programmes. In the case of less use, 
the percentage of 3% shall be reduced in direct proportion to the extent of the use 
of the phonograms in relation to the total broadcasting time of the programmes. … 
5. The basis of calculation to which the percentages referred to in point 3 shall 
apply is the total gross monthly revenue, minus value added tax, obtained by users 
of broadcasting activities, including, by way of example and not limited to, 
revenues from advertising, trade, subscriptions, announcements and information, 
premium-rate telephone calls and SMS messages, sponsorships, radio and 
television competitions and games, rental of broadcasting space, other financial 
contributions, reception authorisations, revenue from broadcasting made to order, 
revenue from associations or other activities related to broadcasting. The basis of 
calculation shall also include revenues of third-party companies, in particular 
those of production and advertising sales companies, in so far as they are received 
in respect of the broadcasting activity of the user in relation to the phonogram or 
phonograms published for commercial purposes, broadcast and, in so far as there 
is an unfair transfer, contrary to good faith commercial practices, specific to the 
sector concerned. In the absence of revenue, the basis of calculation shall be the 
total costs incurred by the user for the broadcasting activity (for example, 
personnel costs, costs of services provided by third parties, purchases of any kind, 
etc.) in the quarter for which the remuneration is due. 
6. The amounts resulting from the application of the percentages to the basis of 
calculation may not be less than the equivalent in Romanian lei (RON) – 
calculated in accordance with the BNR [National Bank of Romania] rate on the 
due date – of EUR 500 per quarter, as minimum remuneration payable by users 
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for each local radio broadcaster owned, and EUR 1 000 per quarter, as minimum 
remuneration payable by users for each national radio broadcaster owned’. 
Article II of Legea nr.74/2018 pentru modificarea și completarea Legii nr. 8/1996 
privind dreptul de autor și drepturile conexe, publicată în Monitorul Oficial al 
României, Partea I nr. 268 din 27 martie 2018 (Law No 74/2018 amending and 
supplementing Law No 8/1996 on copyright and related rights, published in 
Monitorul Oficial al României, Part I, No 268 of 27 March 2018; ‘Law 
No 74/2018’). 
‘Article II 
2. The methodologies provided for in Article 131 of Law No 8/1996 on copyright 
and related rights, as subsequently amended and supplemented, shall remain in 
force until the expiry of the period for which they were adopted. 
3. The provisions of the methodologies drawn up in accordance with Article 131 
and 1311 of [Law No 8/1996], which contain provisions relating to fixed or 
minimum amounts/remuneration applicable in the case of broadcasting, contrary 
to the provisions of paragraph 2 of Article 1311, as amended by this law, shall no 
longer be applicable from the date of expiry of a period of 90 days from the 
publication of this law in Monitorul Oficial al României, Part I’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 20 October 2011, the UPFR, as the collective management organisation for the 
related rights of phonogram producers, and DADA Music SRL, which operates a 
local radio broadcaster, entered into a non-exclusive licence for the broadcasting 
of commercial phonograms. On the basis of that licence, DADA Music SRL 
obtained the right to broadcast (to communicate to the public) phonograms 
through its radio broadcaster, and assumed the corresponding obligation to pay 
equitable remuneration. [In the licence], it was provided that, depending on the 
extent of the use of the phonograms in the radio programmes, DADA Music SRL 
was liable to pay remuneration established as a percentage, calculated in relation 
to the total revenue it obtained, and, in the absence of revenue, in relation to the 
total costs incurred for the broadcasting activity. It was also provided that the 
percentage amounts thus calculated could not be lower than the equivalent in 
RON of EUR 250 per quarter calculated according to the BNR rate on the due 
date, as the minimum remuneration payable by users for each local radio 
broadcaster owned, and EUR 500 per quarter for each national radio broadcaster 
owned. 
2 After the entry into force of Law No 74/2018, DADA Music SRL refused to 
continue to pay the minimum flat-rate remuneration, as it considered that that law 
was immediately applicable and that it was therefore liable to pay remuneration 
only in relation to revenue actually obtained. DADA Music SRL paid, for the 
period from 1 July 2018 to 30 June 2019, remuneration of approximately 
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RON 1 000, calculated as a percentage. The UPFR, in turn, issued an invoice and 
subsequently claimed in legal proceedings the minimum remuneration due 
according to the remuneration methodology. 
3 On 24 June 2019, the UPFR brought an action before the Tribunalul București 
(Regional Court, Bucharest) seeking an order that DADA Music SRL pay the 
minimum remuneration due according to the remuneration methodology. In 
essence, the UPFR was of the view that that minimum remuneration was 
applicable until the date of adoption of a new methodology. DADA Music SRL 
requested that the action be dismissed as unfounded. 
4 The Tribunalul București granted the application for leave to intervene made by 
the Asociația Radiourilor Locale și Regionale (ARLR) [Association of Local and 
Regional Radio], which noted that the minimum remuneration imposed by the 
previous law on broadcasters was burdensome, particularly in the case of small 
radios, which are local in nature. The ARLR argued from the outset for the 
abolition of the minimum flat-rate remuneration, asserting that its imposition was 
contrary to Article 16(2) of Directive 2014/26, according to which rights to 
remuneration must be reasonable in relation to the economic value of the use of 
those rights. 
5 The accounting expert’s report drawn up in the proceedings pending before the 
Regional Court found differences in remuneration amounting to RON 16.13 
(including VAT) and RON 70.68 in default interest for the scenario of non-
application of the minimum remuneration, and RON 14 707.51 (including VAT) 
and RON 8 019.56 in default interest for the alternative scenario of application of 
the rules relating to minimum flat-rate remuneration. 
6 By judgment of 28 January 2022, the Tribunalul București held that the 
percentage remuneration was applicable and that the minimum flat-rate 
remuneration was no longer in force during the period in question. Consequently, 
that court upheld the action in part and ordered DADA Music SRL to pay to the 
UPFR the amounts of RON 16.13 (including VAT) and RON 70.68 in default 
interest. In essence, the Tribunalul București declared Article 164(2) of Law 
No 8/1996 on copyright and related rights and Article II of Law No 74/2018 
applicable. 
7 The UPFR appealed against that judgment before the referring court, and 
submitted that the provisions of Article II of Law No 74/2018 are applicable only 
in the context of the negotiation of a new methodology, whereas the provisions of 
the remuneration methodology remain in force in the meantime. 
8 It is important to note that, on 7 January 2020, following the administrative 
measures ordered by the Oficiul Român pentru Drepturile de Autor (ORDA) 
(Romanian Copyright Office) against the UPFR, DADA Music SRL concluded a 
new licensing agreement with the UPFR (which, however, does not concern the 
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period at issue in the case), in which the minimum flat-rate remuneration is no 
longer mentioned, but only those percentages. 
9 In essence, due to insufficient (declared) revenues obtained from radio 
broadcasters, the UPFR often requested and required radio broadcasters to pay the 
minimum remuneration provided for by the remuneration methodology. ORDA 
issued a decision ordering the UPFR to cease collecting minimum flat-rate 
remuneration. The UPFR appealed against that decision before the administrative 
courts. On 6 May 2022, the Înalta Curte de Casație și Justiție (High Court of 
Cassation and Justice, Romania) dismissed that administrative appeal and upheld 
the same interpretation of Article II of Law No 74/2018 as that supported by 
DADA Music SRL and upheld by the Tribunalul București in the judgment under 
appeal. The referring court submits that that decision could be relevant in the 
context of the main proceedings, in so far as it has acquired the authority of a final 
decision with regard to the UPFR, and the latter therefore has an obligation, in its 
administrative law relations with ORDA, to stop collecting minimum flat-rate 
remuneration. 
The essential arguments of the parties in the main proceedings 
10 In essence, the UPFR maintained that an interpretation of Article II of Law 
No 74/2018 to the effect that it is immediately applicable to the main proceedings 
is contrary to Article 8(2) of Directive 2006/115 and Article 16(2) of Directive 
2014/26. The UPFR submits that Directives 2006/11[5]/EC and 2014/26 and 
Article 15 of the World Intellectual Property Organization Performances and 
Phonograms Treaty do not exclude the possibility of setting minimum flat-rate 
remuneration and preclude interference by the national legislature in the 
implementation of a methodology in force which provides for such minimum 
remuneration. 
11 DADA Music SRL considers that, under Article II of Law No 74/2018, the 
minimum remuneration payable to collective management organisations is no 
longer applicable and that that article is immediately applicable, so that it has to 
pay only remuneration calculated on a percentage basis. 
Succinct presentation of the reasoning in the request for a preliminary ruling  
12 In the context of some earlier disputes, differences of interpretation have arisen in 
national judicial practice as regards the meaning of the concept of local radio 
broadcaster (post radio local). In those disputes, the UPFR supported the position 
that each local radio station (emițător local) is equivalent to a separate local radio 
broadcaster, on the ground that those local radio stations make the radio 
broadcaster’s broadcasts accessible to a new audience. Another argument was 
based on the fact that, in some cases, advertisements broadcast locally were 
different. In practice, those assertions – sometimes accepted by national courts – 
led to certain minimum remuneration being calculated at a high level, which was 
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considered burdensome by broadcasters with local activity and often had modest 
economic results. The circumstances described led to the amendment of Law 
No 8/1996 on copyright and related rights by Article II of Law No 74/2018. 
13 The referring court considers, as a preliminary point, that Article II of Law 
No 74/2018 must be interpreted as meaning that the provisions of point 6 of the 
remuneration methodology ceased to have effect on the expiry date laid down in 
that article, with the result that, for the period at issue in the proceedings, DADA 
Music SRL was not required to pay minimum remuneration, but only 
remuneration in relation to the revenue actually obtained. 
14 According to the Curtea de Apel, it is clear and common ground that Article 8(2) 
of Directive 2006/115 and the second paragraph of Article 16(2) of Directive 
2014/26 do not preclude the setting of minimum flat-rate remuneration, provided 
that the amount of that remuneration is not excessive and burdensome for users 
(broadcasters). In principle, the minimum remuneration set by the remuneration 
methodology complied with the requirements imposed by EU law. 
15 As regards the first question referred to the Court for a preliminary ruling, the 
referring court notes that the provisions of EU law of which interpretation is 
sought provide that the remuneration payable to phonogram producers must be 
appropriate and reasonable. However, those directives leave it to the national 
legislature to provide for mechanisms by which appropriate remuneration in the 
sense envisaged is achieved. From that perspective, nothing in the relevant 
provisions or the explanatory recitals justifies the interpretation that it is 
mandatory to provide for (minimum) flat-rate remuneration. Consequently, that 
question should be answered in the negative. 
16 As regards the second question referred for a preliminary ruling, the view of the 
Curtea de Apel is more nuanced. It notes that the remuneration methodology 
provides for remuneration as a percentage, but also minimum flat-rate amounts for 
cases in which the user does not obtain economic results or, due to other 
circumstances, carries out the broadcasting activity without also obtaining 
economic benefits. It considers that the system established by that methodology 
must be regarded as a whole and that, in so far as it was anticipated that the 
national legislature would no longer allow minimum remuneration to be agreed 
upon, it is possible that the provisions relating to the remuneration percentages 
and/or the basis of calculation were different, precisely in order to ensure 
appropriate remuneration for holders of related rights. 
17 By Article II of Law No 74/2018, the national legislature deprived a component of 
the remuneration system of effectiveness with immediate effect, without 
amending the criteria for calculating remuneration and without providing for a 
maximum period for negotiating new agreements (methodologies) in order to 
quantify equitable remuneration, by amending in favour of radio broadcasters the 
system prior to Law No 74/2018, without there being any coherent system in place 
to ensure that the remuneration payable to phonogram producers would also be 
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reasonable for those phonogram producers, and not lower, derisory 
[remuneration]. Moreover, in the current situation, it is foreseeable that users will 
not be very enthusiastic about negotiating a new methodology, as the one 
currently in force is favourable. 
18 As regards the cases submitted by the UPFR, which show significant differences 
between the remuneration paid by broadcasters in 2022 (some paid quarterly 
remuneration equal to or even lower than RON 500, while others paid substantial 
remuneration, in the order of tens or hundreds of thousands of RON), the  Curtea 
de Apel notes that, in the current system, some broadcasters may pay derisory 
remuneration, which probably corresponds to the economic value of the use 
(which may be non-profit-making or very low-profit), but it is doubtful whether it 
also corresponds to the economic value of the rights managed. 
19 Secondly, according to the referring court, the methodologies have effects similar 
to a legislative act, [which is] enforceable erga omnes, for all rightholders and 
users in their respective sectors, and the legislature should be recognised as having 
the right to intervene, for reasons of general policy, by means of immediately 
applicable provisions even in relation to the methodologies currently in force. It 
could not therefore be held that the provisions of EU law preclude in principle a 
legislative provision such as that contained in Article II of Law No 74/2018, 
which declares minimum (flat-rate) remuneration inapplicable with immediate 
effect. 
20 As regards the third and fourth questions referred for a preliminary ruling, the 
Curtea de Apel emphasises the importance of establishing remuneration for 
rightholders which is not derisory, since such a situation would in practice amount 
to expropriation in the private interest, which would constitute an infringement of 
Article 17 of the Charter of Fundamental Rights of the European Union. The 
Curtea de Apel considers that, since the national courts are required to interpret 
the national legislation adopted in order to transpose EU directives in such a way 
as to ensure their effectiveness, those courts should be recognised as having the 
power to ascertain whether the percentage remuneration is equitable and 
reasonable both for rightholders and for users or, on the contrary, whether it is 
manifestly derisory or, as the case may be, manifestly excessive. 
21 From that perspective, the referring court asks which criteria may be used for the 
purposes of such an assessment, considering that those criteria are not a question 
of national law, but are above all a question of EU law, since directives must be 
interpreted and applied in a uniform manner. Similarly, it asks whether, if it were 
to be found that the remuneration payable under national law is derisory in nature, 
the national court is entitled or even obliged to apply alternative criteria to that of 
declared revenue. 
22 Finally, the Curtea de Apel notes that, according to the judgment of the Court [of 
Justice] in Francovich and Bonifaci v Italy, an incorrectly transposed directive 
cannot be applied contra legem in relations between private individuals, but that 
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does not render the action inadmissible (as ARLR maintains) for at least two 
reasons. First, it is for the national court to interpret all the national rules, but not 
exclusively the national rules transposing a directive, in such a way as to ensure 
that, also in relations between individuals, the requirements of EU law are fully 
complied with (effectiveness) (see, to that effect, the judgment of the Court of 
Justice in Pfeiffer and Others). As is also apparent from the third and fourth 
questions referred for a preliminary ruling, the national court has specific means at 
its disposal to ensure a result that is in conformity with the binding rules of EU 
law. Secondly, if it were not possible to interpret the national law in such a way as 
to achieve an application, but not an infringement, of the binding rules of EU law, 
the individual harmed could have an action for damages against the State (see, to 
that effect, Francovich and Bonifaci v Italy). Those principles were reaffirmed 
relatively recently in the judgment in Thelen Technopark Berlin.