Opinion of the Advocate General — ECLI:EU:C:2020:4
Date: 2020-01-15
Language of the case: Swedish
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Sweden

Translation C-753/18 - 1 
Case C-753/18 
Request for a preliminary ruling 
Date lodged: 
30 November 2018 
Referring court: 
Högsta domstolen (Sweden) 
Date of the decision to refer: 
15 November 2018 
Appellants: 
Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. 
(Stim) 
Svenska artisters och musikers intresseorganisation ek. för. (SAMI) 
Respondents: 
Fleetmanager Sweden AB 
Nordisk Biluthyrning AB 
      
MINUTES  Case No T 5909-17    2018-11-13  
[...] 
[...]    Case No T 891-18 
[...]     [...] 
[...] 
PARTIES 
Appellant (T 5909-17) 
Föreningen Svenska Tonsättares Internationella Musikbyrå (Stim) u.p.a., 
[...] Stockholm 
EN 
REQUEST FOR A PRELIMINARY RULING OF 15. 11. 2018 - CASE C-753/18 
 
2  
[...] 
[Or. 2] Respondent  (T 5909-17) 
Fleetmanager Sweden AB [...] 
Malmö [...] 
[...] 
Appellant (T 891-18) 
Svenska artisters och musikers intresseorganisation (SAMI) ek. för., 
[...] Stockholm 
[Or. 3 ] [...] 
[...] 
Respondent (T 891-18) 
Nordisk Biluthyrning AB [...] 
[...] 
Stockholm 
[...] 
MATTER 
Breach of copyright, inter alia 
DECISIONS UNDER APPEAL 
Judgment of the Hovrätten över Skåne och Blekinge (Court of Appeal for Skåne 
and Blekinge, Sweden) of 22/11/2017 [...] (T 5909-17) 
Judgment of Svea hovrätt, Patent- och marknadsöverdomstolen (Svea Court of 
Appeal, Patent and Market Court of Appeal, Sweden) of 17/01/2018 [...] 
(T 891-18) 
[...] 
[Or. 4] The Högsta domstolen (Supreme Court, Sweden) makes the following 
ORDER 
STIM AND SAMI 
 
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The Högsta domstolen (Supreme Court) hereby decides to obtain a preliminary 
ruling from the Court of Justice of the European Union under Article 267 of the 
Treaty on the Functioning of the European Union and to submit a request for a 
preliminary ruling to the Court of Justice in accordance with Annex A to these 
minutes. 
The Högsta domstolen (Supreme Court) orders a stay of the proceedings pending 
the answer from the Court of Justice of the European Union. 
[...] 
[Or. 5] Case T 5909-17, Föreningen Svenska Tonsättares Internationella 
Musikbyrå (Stim) u.p.a. v Fleetmanager Sweden AB 
Case T 891-18 Svenska artisters och musikers intresseorganisation (SAMI) 
ek. för. v Nordisk Biluthyrning AB 
Case T 5909-17 
Facts of the case 
Fleetmanager Sweden AB operates in the car hire sector and has a leased fleet of 
1 800 cars, fitted with standard equipment, including radios. Fleetmanager’s 
customers are predominantly companies which operate in different areas of 
Sweden, providing car hire services under the trade mark Sixt. The cars are used 
in those companies for hire periods of 29 days or less, so-called ‘short-term hire’. 
Fleetmanager’s subsidiary, Nordic MasterCar AB, is the franchisor for car hire 
companies under the trade mark Sixt in Sweden. 
Stim is a copyright association for composers of music and their publishers. Stim 
administers and licenses rights to music and lyrics on their behalf. Through 
agreements with the operators who wish to make [Or. 6] protected musical works 
available to the public, Stim regulates the terms and conditions for the exploitation 
of those works and receives and distributes the remuneration to the individual 
authors. 
In May 2011, Stim and the car hire industry association Biluthyrarna Sverige 
Servicebolag AB entered into an agreement, pursuant to which, in exchange for an 
annual remuneration, Stim licensed Biluthyrarna’s members publicly to perform 
or to communicate to the public the musical works in which Stim holds exclusive 
rights. The agreement was terminated in 2014. 
The case before the tingsrätten (District Court) 
Stim brought an action against Fleetmanager seeking an order that the company 
should pay Stim SEK 369 450 plus interest. The basis for the claim was that 
Fleetmanager, by its activities, contributed to the fact that other operators, without 
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authorisation from Stim, made musical works available to the public, for the 
purposes of copyright, by supplying cars, equipped with radio, to the public for 
short-term hire. Stim argued that that act of making available represented an 
infringement of the rights enjoyed by authors or their successors in title in 
accordance with the first and third subparagraphs of Paragraph 2 of the 
upphovsrättslagen (1960:279) (Law on copyright (1960: 279); ‘the UL’), which 
gives Stim a right under Paragraph 54 of that Law to equitable remuneration for 
the unlawful exploitation of the works or, in the alternative, remuneration for the 
additional harm caused by the infringements. 
Fleetmanager disputed that hiring out cars which are equipped by the 
manufacturer with a radio receiver means that the hire company makes copyright-
protected works available to the public in such a way that the obligation to pay 
remuneration to the authors lies with the hire company. In the event that the Court 
were to consider that the hiring procedure does constitute an act of making 
available to the public, Fleetmanager argued that  Stim’s action should be 
dismissed on the ground that Fleetmanager cannot be considered to have 
contributed to the infringement. 
[Or. 7] The tingsrätten (District Court) found that the hiring out of cars equipped 
with radio was an act of making available to the public under the UL and that 
there were grounds for payment of remuneration. However, the tingsrätten 
(District Court) concluded that Fleetmanager had not contributed to the 
infringement, for which reason Stim’s action was dismissed. 
The case before the hovrätten (Court of Appeal) 
Stim lodged an appeal before the hovrätten (Court of Appeal). In its examination, 
the hovrätten (Court of Appeal) found that the assessment of the scope of the 
exclusive right under Paragraph 2 of the UL should be made in this case on the 
basis of the criteria for ‘communication to the public’ within the meaning of 
Article 3(1) of Directive 2001/29. 1 The hovrätten (Court of Appeal) concluded 
that car hire companies, by providing cars equipped with radio for short-term hire, 
communicated phonograms to the public, with the result that those companies are 
liable to pay remuneration. However, the hovrätten (Court of Appeal) made the 
same analysis as that made by the tingsrätten (District Court) of the question of 
contribution and dismissed the appeal. 
The case before the Högsta domstolen (Supreme Court) 
Stim claimed that the Högsta domstolen (Supreme Court) should uphold the 
action and Fleetmanager contested any amendment to the decision of the 
hovrätten (Court of Appeal). Fleetmanager contends that car hire cannot be 
 
1 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. 
STIM AND SAMI 
 
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considered to be a ‘communication to the public’ within the meaning of 
Article 3(1) of the directive. Hiring out cars that are equipped as standard with 
radio receivers — which are an integral part of the in-car control and information 
system — amounts, according to Fleetmanager, to the mere provision of physical 
facilities for enabling or making such a communication (recital 27 of the 
directive). Fleetmanager argued further that the group of persons who hire cars 
cannot be classified as ‘the general public’ who, at the same time or successively, 
listen to one and the same work via the radio in a hired car. Fleetmanager also 
submitted that the hirers do not constitute a new audience since, using 
smartphones which they can connect to the hired car’s [Or. 8] control and 
information system, they have access to the same broadcast musical works as they 
can hear through the hire car’s radio. 
The Högsta domstolen (Supreme Court) allowed an appeal in the case. 
Case T 891-18 
Facts of the case 
Nordisk Biluthyrning AB hires out vehicles to private individuals, authorities and 
businesses. Eleven of the company’s vehicles are hired out on short-term hires 
(see above). The vehicles are equipped as standard with radios. 
SAMI is a copyright collecting society which manages the related rights of 
performing artists, such as musicians and artists. By contracts, SAMI also 
manages the related rights of creators of phonograms, such as record companies 
and producers. 
Nordisk Biluthyrning paid remuneration to SAMI from 2011 until 2014 inclusive 
under an agreement between SAMI and the car hire industry association, 
Biluthyrarna Sverige Servicebolag AB. The agreement was terminated in 2014. 
Proceedings before the tingsrätten, Patent- och marknadsdomstolen (District 
Court, Patent and Market Court) 
Nordisk Biluthyrning brought an action before the Patent- och 
marknadsdomstolen (Patent and Market Court) and applied for a declaration by 
the Court that the company is not bound to pay remuneration to SAMI for the use 
of phonograms in the period from 1 January 2015 to 31 December 2016 in respect 
of the fact that the company’s vehicles which are hired out to private individuals 
and business clients are equipped with a radio and CD player. The company 
claimed that it neither performs nor communicates phonograms to the public by 
the fact that the company’s hire cars are equipped with built-in radios. Developing 
its case, the company submitted that there is no ‘communication to the public’ 
since, inter alia, the hire cars’ radios are an [Or. 9] integral part of the cars’ 
equipment and so the company cannot be deemed to be carrying out any 
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intentional act but merely to be providing the physical facilities for 
communication. The company also argued that the hirers do not constitute a new 
audience, since, using smartphones which they can connect to the hired car’s 
control and information system, they have access to the same broadcast musical 
works as they can hear through the hire car’s radio. According to the company, the 
11 short-term hire cars were hired out a total of  approximately 200 times per year. 
The Patent- och marknadsdomstolen (Patent and Market Court) found that the UL 
should be interpreted in accordance with the directive and that the relevant 
disposition set out in Article 8(2) of Directive 2006/115 2 in accordance with the 
case-law of the Court of Justice corresponds to ‘communication to the public’ in 
Article 3(1) of Directive 2001/29. * The court further held that Nordisk 
Biluthyrning, by providing radio receivers in hire cars, made it possible for the 
hirers to hear phonograms and that there was therefore a ‘communication’. The 
court took the view that the other criteria for determining whether there is a 
‘communication to the public’ were also satisfied. The court held, in the light of 
the evidence put forward by SAMI, that there was a total of approximately 528 
hires per year for the 11 cars. The court concluded that Nordisk Biluthyrning was 
liable to pay remuneration to SAMI and dismissed the company’s action. 
Proceedings before the hovrätten, Patent- och marknadsöverdomstolen (Court of 
Appeal, Patent and Market Court of Appeal) 
In contrast to the Patent- och marknadsdomstolen (Patent and Market Court), the 
Patent- och marknadsöverdomstolen (Patent and Market Court of Appeal) found 
that Nordisk Biluthyrning cannot be regarded as having communicated the 
phonograms to the public and upheld the company’s appeal. The main reason for 
that finding was that, other than the provision of radios in the cars, there do not 
appear to be any additional instances of activity by Nordisk Biluthyrning where 
phonograms are made available to the hire cars’ drivers [Or. 10] and passengers. 
The court also found that the circumstances cannot be considered comparable 
either with such a situation as the actual provision of both an apparatus and 
phonograms in physical or digital form which can be played or listened to on that 
apparatus. Taking into account the finding that, due to a lack of action by the user, 
there was no communication, there was, in the view of the court, no reason to rule 
on the other, cumulative parts of the condition of ‘communication to the public’. 
 
2 Council Directive 2006/115/EEC of 12 December 2006 on rental right and lending right and on 
certain rights related to copyright in the field of intellectual property. 
*  TN: The English-language versions of those directives both use the expression ‘communication 
to the public’ while the Swedish-language versions use the expressions ‘överföring till 
allmänheten’ (Directive 2001/29) and ‘återgivning för allmänheten’ (Directive 2006/115). 
STIM AND SAMI 
 
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The case before the Högsta domstolen (Supreme Court) 
SAMI claimed that the Högsta domstolen (Supreme Court) should reject Nordisk 
Biluthyrning’s action for a declaration that the company is not liable to pay 
remuneration to SAMI.  The association maintains that the company’s hiring out 
of cars equipped with radio constitutes a communication to the public within the 
meaning of copyright law. 
The Högsta domstolen (Supreme Court) has not yet ruled on the question of leave 
to appeal. 
The legal framework and the need for a preliminary ruling 
Paragraph 2 of the UL regulates the authors’ exclusive right to produce copies of 
their work and to make it accessible to the public, which is possible, inter alia, 
when the work is communicated to the public (third subparagraph, 1) and when 
the work is performed in public (third paragraph, 2). The provision was given its 
present form in connection with the entry into force of Directive 2001/29. The 
amended wording adapted the UL to Article 3(1) of the directive, according to 
which it is for the Member States to give authors an exclusive right to allow or 
prohibit each communication of their work to the public. 
Paragraphs 45 and 46 of the UL contain provisions on related rights for 
performing artists and producers of audio and video recordings. Their exclusive 
right is restricted by the provision in Paragraph 47 as regards phonograms. Those 
may be used in public performance, or a communication to the public, except in 
cases where the communication is made in such a way that individuals can obtain 
access to the phonograms from a place and at a time individually chosen by them. 
Paragraph 47 further provides that, in such [Or. 11] use, the producer and the 
performing artists whose performances are on the recording are entitled to 
remuneration. The provision in Paragraph 47 satisfies the requirement in Article 
8(2) of Directive 2006/115, which states that Member States are to provide a right 
to a single equitable remuneration to be paid by the user, if a phonogram 
published for commercial purposes, or a reproduction of such phonogram, is used 
for broadcasting by wireless means or for any communication to the public. 
The Court of Justice has ruled that the right of communication to the public under 
Article 8(2) of Directive 2006/115 and the right of communication to the public 
under Article 3(1) of Directive 2001/29 must be assessed on the basis of the same 
criteria (see, for example, judgment of 31 May 2016, Reha Training, C-l17/15, 
EU:C:2016:379, paragraphs 33 and 34). 
Further, it is clear from the case-law of the Court of Justice, in a number of 
judgments, that there can be a communication to the public within the meaning of 
Article 3(1) of Directive 2001/29 when communications occur by means of 
technical equipment to a live audience, for example when there is a broadcast via 
radio or television equipment installed in a café, in a rehabilitation centre or a spa 
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establishment. The Court of Justice has also held that there is a ‘user’ who makes 
a ‘communication to the public’ within the meaning of Article 8(2) of Directive 
2006/115 where a hotel operator provides, in guest bedrooms, both an apparatus 
and phonograms in physical or digital form, which can be played or listened to on 
that apparatus (judgment of 15 March 2012, Phonographic Performance, 
C-162/10, EU:C:2012:141). However, the Court reached the opposite conclusion 
in a judgment of the same day concerning the free broadcasting of phonograms in 
a dental practice (see judgment of 15 March 2012, SCF, C-135/10, 
EU:C:2012:140). 
In Case T 5909-17, Stim v Fleetmanager Sweden AB, the question arises as to 
whether the hiring out of cars which are equipped as standard with radio receivers 
constitutes a communication to the public within the meaning of Article 3(1) of 
Directive 2011/29. In Case T 891-18, SAMI v Nordisk Biluthyrning AB, the same 
question arises, [Or. 12] but in relation to Article 8(2) of Directive 2006/115. It is 
not possible, on the basis of the case-law of the Court of Justice, clearly to 
determine how the questions must be answered, including, inter alia, the 
significance of the extent to which the content of recital 27 of Directive 2001/29 is 
relevant in relation to the act in question. 
In Case T 891-18, the question also arises as to how the concept of ‘a fairly large 
number’ (see, inter alia, judgment of 31 May 2016, Reha Training, C-l 17/15, 
EU:C:2016:379, paragraph 41), is to be interpreted in the light of the facts in the 
case concerning the number of persons per year who hire cars in the hire 
company’s activities. 
In order to clarify those issues, it is necessary to obtain a preliminary ruling from 
the Court of Justice. 
Request for a preliminary ruling 
The Högsta domstolen (Supreme Court) requests the Court of Justice, by a 
preliminary ruling, to answer the following questions. 
Cases T 5909-17 and T 891-18 
1. Does the hiring out of cars which are equipped as standard with radio 
receivers mean that the person who hires the cars out is a user who 
makes a communication to the public within the meaning of 
Article 3(1) of Directive 2001/29 and within the meaning of 
Article 8(2) of Directive 2006/115? 
Case T 891-18 
2. What is the significance, if any, of the volume of the car hire activities 
and the duration of the hires?