Opinion of the Advocate General — ECLI:EU:C:2023:437
Date: 2023-05-25
Language of the case: Italian
Subject matter: Culture;Intellectual, industrial and commercial property;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Translation C-10/22 – 1 
Case C-10/22 
Request for a preliminary ruling 
Date lodged: 
5 January 2022 
Referring court: 
Tribunale ordinario di Roma (Italy) 
Date of the decision to refer: 
5 January 2022 
Applicant: 
Liberi editori e autori (LEA) 
Defendant: 
Jamendo SA 
  
ITALIAN REPUBLIC 
TRIBUNALE ORDINARIO DI ROMA (District Court, Rome) 
CHAMBER XVII SPECIALISED IN COMMERCIAL MATTERS 
[…]  
makes the following 
REFERENCE FOR A PRELIMINARY RULING under the expedited 
procedure 
(Article 267 TFEU and Article 105 of the Rules of Procedure of the Court of 
Justice) 
in the case […] 
between 
LEA – LIBERI EDITORI E AUTORI […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 5. 1. 2022 – CASE C-10/22 
 
2  
Applicant 
v 
JAMENDO SA […] with registered office in [Luxembourg] […] 
Defendant 
SUBJECT MATTER OF THE MAIN PROCEEDINGS 
1 LEA is a collective management organisation, which allows it to operate in the 
field of copyright intermediation in Italy pursuant to Article 180 of the Legge sul 
diritto d’autore n. 633 del 1941 (Law on Copyright No 633 of 1941). It therefore 
acts as agent for the management and promotion of copyright on behalf of its 
members and collects the corresponding revenues. LEA manages the copyright for 
around 39 000 authors and publishers (of whom more than 22 000 are Italian) on 
an exclusive basis, directly and under representation agreements concluded with 
independent management entities and collective management organisations, 
including those outside the European Union. As far as the present case is 
concerned, the mandate also includes the collection of all royalties under licences 
agreed for background music played in businesses via in-store radio. 
2 Jamendo is an independent management entity incorporated in Luxembourg. 
Since 2004, it has been operating in Italy with a view to bringing together artists 
and music fans from all over the world to create a global independent music 
community. Jamendo Music provides access to an extensive catalogue of over 
700 000 tracks shared by more than 45 000 artists from no fewer than 150 
countries. Under the terms of the licence, the tracks can be downloaded from 
Jamendo’s website and listened to free of charge for personal use. Part of the 
digital music catalogue is also made available for commercial use, subject to the 
rightholders’ permission. 
3 LEA brought an action before the referring court seeking an injunction against 
Jamendo ante causam, on the basis that the defendant’s copyright intermediation 
activity in Italy is unlawful since: 
- Jamendo is not registered on the list of organisations authorised to 
perform copyright intermediation in Italy; 
- Jamendo does not meet the specific criteria laid down in decreto 
legislativo n. 35/2017 (Legislative Decree No 35/2017) transposing 
Directive 2014/26/EU on collective management of copyright; 
- Jamendo failed to notify the Ministero delle Telecomunicazioni 
(Ministry of Telecommunications) of the commencement of its activity, as 
required under Article 8 of Legislative Decree No 35/2017. 
LEA 
 
3 
Consequently, LEA is seeking an injunction against Jamendo for its commercial 
activity in Italy, in addition to a fine for non-compliance of EUR 20 000 per day 
and the publication of the injunction in three leading national newspapers. 
4 Jamendo entered an appearance in the interlocutory proceedings, relying on an 
interpretation of Italian legislation compatible with the provisions of Directive 
2014/26/EU, which provides that holders of copyright and related rights on 
musical works are free to entrust the management of their copyright to a collective 
management organisation or to an independent management entity. Article 3 of 
the directive identifies and defines two distinct categories of entities authorised to 
manage copyright: 
- the collective management organisation (CMO), or any organisation 
which is authorised ‘by law or by way of assignment, licence or any other 
contractual arrangement to manage copyright or rights related to copyright 
on behalf of more than one rightholder, for the collective benefit of those 
rightholders, as its sole or main purpose, and which fulfils one or both of the 
following criteria: (i) it is owned or controlled by its members; (ii) it is 
organised on a not-for-profit basis’, and 
- the independent management entity (IME), or any organisation 
which is authorised ‘by law or by way of assignment, licence or any other 
contractual arrangement to manage copyright or rights related to copyright 
on behalf of more than one rightholder, for the collective benefit of those 
rightholders, as its sole or main purpose, and which is: (i) neither owned nor 
controlled, directly or indirectly, wholly or in part, by rightholders; and (ii) 
organised on a for-profit basis’. 
5 Jamendo submits that, in transposing the EU legislation, the Italian legislature 
failed to grant independent management entities the rights covered in the 
directive. Indeed, Article 180 of the Law on Copyright – the content of which is 
not affected by the Implementing Decree – still identifies the Società Italiana degli 
Autori ed Editori (Italian Society of Authors and Publishers; SIAE) and CMOs as 
the only entities able to carry out intermediation activities, with no mention of 
IMEs. Italian legislation thus precludes IMEs from operating in Italy in the field 
of copyright intermediation, leaving them the sole option of concluding 
agreements with the SIAE or with authorised CMOs. 
6 In the alternative, Jamendo affirmed that its activity does not come under the 
collective management of copyright, but under the direct management of 
copyright. It therefore relies on recital 16 of the directive, which excludes the 
possibility of including in the definition of independent management entities those 
categories (such as publishers or producers) that license the rights that have been 
transferred to them on the basis of ‘individually’ negotiated agreements. 
REQUEST FOR A PRELIMINARY RULING OF 5. 1. 2022 – CASE C-10/22 
 
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PROVISIONS OF EU LAW AND NATIONAL LAW RELIED ON 
7 Directive 2014/26/EU is based on the premiss that in ‘an internal market where 
competition is not distorted, protecting innovation and intellectual creation also 
encourages investment in innovative services and products’ (recital 1) and that 
‘when established in the Union, collective management organisations should be 
able to enjoy the freedoms provided by the Treaties when representing 
rightholders who are resident or established in other Member States or granting 
licences to users who are resident or established in other Member States’ 
(recital 4). In particular, reproducing the content of the Commission 
Recommendation of 18 May 2005 on collective cross-border management of 
copyright and related rights for legitimate online music services (OJ 2005, 
21 October 2005), and extending it to the entire sector of works protected by 
copyright, Article 5(2) of the directive provides: ‘Rightholders shall have the right 
to authorise a collective management organisation of their choice to manage the 
rights, categories of rights or types of works and other subject matter of their 
choice, for the territories of their choice, irrespective of the Member State of 
nationality, residence or establishment of either the collective management 
organisation or the rightholder.’ 
8 The directive states that there are two distinct categories of actors entitled to 
perform activities of copyright management, to which it gives the following 
definitions (Article 3): ‘“collective management organisation” [(CMO)] means 
any organisation which is authorised by law or by way of assignment, licence or 
any other contractual arrangement to manage copyright or rights related to 
copyright on behalf of more than one rightholder, for the collective benefit of 
those rightholders, as its sole or main purpose, and which fulfils one or both of the 
following criteria: (i) it is owned or controlled by its members; (ii) it is organised 
on a not-for-profit basis’, while ‘“independent management entity” [(IME)] means 
any organisation which is authorised by law or by way of assignment, licence or 
any other contractual arrangement to manage copyright or rights related to 
copyright on behalf of more than one rightholder, for the collective benefit of 
those rightholders, as its sole or main purpose, and which is: (i) neither owned nor 
controlled, directly or indirectly, wholly or in part, by rightholders; and (ii) 
organised on a for-profit basis’. 
9 At the centre of copyright law in the Italian legal system is legge 22 aprile 1941, 
n. 633 (Protezione del diritto d’autore e di altri diritti connessi al suo esercizio, 
GU n.166 del 16-7-1941) (Law No 633 of 22 April 1941 on the protection of 
copyright and related rights, Gazzetta ufficiale della Repubblica italiana No 166 
of 16 July 1941), as amended. 
10 By means of Decreto Legislativo 15 marzo 2017, n. 35 (Legislative Decree No 35 
of 15 March 2017) (‘the Implementing Decree’), the Italian Government 
transposed the Barnier Directive, leaving substantially unchanged the content of 
Article 180 of the Law on Copyright, which essentially precluded the correct 
application of the Barnier Directive in Italy. In effect, the SIAE retained its 
LEA 
 
5 
monopoly in the field of copyright intermediation, while rightholders were not 
guaranteed the freedom to choose an organisation to manage their rights. 
Following the significant uncertainties that emerged as a result of this incomplete 
transposition, and following the infringement procedure initiated by the European 
Commission against Italy, the Italian Government, by means of Decreto Legge 16 
ottobre 2017, n. 148 (Decree Law No 148 of 16 October 2017) laying down 
urgent provisions on tax and financial matters, amended Article 180 of Law 
No 633/1941, extending ‘to the other collective management organisations 
referred to in Legislative Decree No 35 of 15 March 2017’ – and therefore not to 
IMEs – the reservation originally provided in favour only of SIAE. The text 
currently in force of Article 180 of the Law on Copyright reads: ‘[1.] The activity 
of intermediary, however implemented, by any direct or indirect form of 
intervention, mediation, mandate, representation and even assignment for the 
exercise of rights of representation, execution, performing, broadcasting including 
communication to the public via satellite and mechanical and cinematic 
reproduction of protected works, shall be exclusively reserved to the Società 
Italiana degli Autori ed Editori (Italian Society of Authors and Publishers; SIAE) 
and to the other collective management organisations referred to in Legislative 
Decree No 35 of 15 March 2017. [2.] Such activity shall be carried out for the 
purpose of: (1) granting, on behalf of and in the interests of the beneficiaries, 
licences and authorisations for the economic exploitation of protected works; (2) 
collecting the proceeds deriving from those licences and authorisations; (3) 
distributing those revenues among the beneficiaries. [3.] The activity of the 
Società Italiana degli Autori ed Editori (Italian Society of Authors and Publishers; 
SIAE) shall also be carried out according to the rules established by regulation in 
the foreign countries in which it has organised representation. [4.] The 
abovementioned exclusivity of powers shall not affect the power of the author, his 
or her successors or beneficiaries to exercise directly the rights recognised by this 
law.’ 
SUCCINCT PRESENTATION OF THE REASONING IN THE REQUEST FOR 
A PRELIMINARY RULING 
11 It is clear that Jamendo performs copyright intermediation activities in Italy. 
According to Jamendo’s General Terms of Use, artists can post one or more of 
their musical works (either tracks or albums) on the platform provided by 
Jamendo, creating their own artist account and posting their works directly on the 
Jamendo platform by clicking on ‘upload your music’. In addition, for each work 
uploaded, artists can choose the type of Creative Commons licence they want to 
apply, thus deciding for each individual work which rights are to be granted to the 
platform’s users (in other words, the people who use the services offered by 
Jamendo). Once their music has been uploaded to the portal, artists can then 
decide whether to register for the Jamendo Licensing service on the digital 
platform by signing the distribution agreement. After registering, artists can 
(manually) add one or more works to the Jamendo Licensing service and decide 
whether to participate in the commercial programmes available: namely, the ‘In-
REQUEST FOR A PRELIMINARY RULING OF 5. 1. 2022 – CASE C-10/22 
 
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Store Program’ (licence for background music played in businesses […]) and the 
‘Catalog Program’ (licence for the synchronisation of music with audiovisual 
content or for other multimedia projects). By signing the distribution agreement, 
the rightholders warrant to Jamendo that they are not affiliated with any collective 
management company and that they have no contractual relationship with such 
entities, nor with any other private operator (such as broadcasters, distribution 
platforms, manufacturers or brands) that would prevent them from using the 
Jamendo Licensing program worldwide, and consequently opt for the independent 
management of their copyright. With the Jamendo In-Store Program, the works of 
the Certified Artist are included in the playlists created by Jamendo – of which 
there are currently 27 – to be played as background music in premises open to the 
public (‘the Playlists’). 
12 Therefore, the defendant’s activity does not appear to be immediately classifiable 
as direct management, given that by its own admission, Jamendo grants licences 
and sublicences, collects royalties based on the number of times the work is 
played and deducts a fee calculated as a percentage of the revenues. Moreover, the 
agreements that Jamendo signs with its members do not appear to be negotiated 
individually; the choice of various membership options that Jamendo offers its 
members through different versions of the agreement and different forms of 
copyright management does not detract from the binding nature of the contract, a 
factor that precludes each individual contract from having been specifically 
negotiated. 
13 Incidentally, Jamendo itself states that it manages ‘a technological platform 
(available online at www.jamendo.com) for the distribution and licensing of 
musical works owned by independent authors/artists around the world’. 
14 Conversely, it is common ground between the parties that LEA meets the legal 
definition of a collective management organisation. 
15 Equally undisputed by the parties is the fact that Jamendo does not appear on the 
list of authorised collecting societies pursuant to Article 5(1) of Annex A to 
delibera n. 396/17/CONS (Resolution No 396/17/CONS), nor may it be 
registered/accredited according to the provisions of Article 180 of the Law on 
Copyright. 
16 The potential existence of the fumus boni iuris in favour of LEA may be asserted 
since the activity carried out by Jamendo is fully comparable to that of LEA, with 
whom the defendant acts in direct competition without meeting the legal 
requirements for copyright intermediation in the form of collective management. 
17 As regards the periculum in mora, it is the established opinion of this court that 
this inherently exists whenever there is an infringement of intellectual property 
rights. Furthermore, the injunction gives the most satisfaction to the rightholder 
and the wider community, particularly in the light of the considerable economic 
LEA 
 
7 
damage done to the copyright system by disseminating counterfeited works or by 
operating in breach of the specific rules governing the sector. 
18 At this point, the question referred for a preliminary ruling by Jamendo seems 
decisive: the applicable Italian legislation excludes IMEs from the category of 
entities authorised to act as ‘intermediary, however implemented, by any direct or 
indirect form of intervention, mediation, mandate, representation and even 
assignment for the exercise of rights of representation, execution, performing, 
broadcasting including communication to the public via satellite and mechanical 
and cinematic reproduction of protected works’. 
OPINION OF THE REFERRING COURT 
19 It is the opinion of the referring court that the question is well founded. Although 
it is true, as submitted by LEA, that the directive is an instrument that lends itself 
to flexible transposition in domestic law, this does not undermine the principle of 
the correct and full transposition of a directive, which is the system designed by 
the EU legislature to produce the intended harmonisation effects. Partial, 
incomplete or illogical transposition of an EU directive constitutes, according to 
the settled case-law of the Court of Justice, an infringement of EU law. 
20 Accordingly, the national legislature had a duty when transposing the directive to 
ensure that (recital 7 of the directive) ‘the laws of the Member States relating to 
copyright management and multi-territorial licensing of online rights in musical 
works should be coordinated with a view to having equivalent safeguards 
throughout the Union. Therefore, this Directive should have as a legal base 
Article 50(1) TFEU.’ Furthermore, it is clear to the referring court that the lack of 
harmonisation in Italian legislation of the powers and authority granted to 
independent management entities (IMEs), or their exclusion from the category of 
entities authorised to perform copyright intermediation, amounts to a choice that 
cannot be made by the national legislature – despite the discretionary nature of the 
transposition – since it raises obstacles to the exercise of equivalent economic 
activities within the national territory for subjects of EU law, such as Jamendo, 
established in the alternative form of an independent management entity. That 
contradiction can also be found in the Italian implementing legislation, in so far as 
Article 4 of the implementing legislation states that ‘rightholders may entrust to a 
collective management organisation or to an independent management entity of 
their choice the management of their rights, the related categories or types of 
works and other materials protected for the territories indicated by them, 
regardless of the Member State of the European Union of nationality, residence or 
establishment of the collective management organisation, of the independent 
management entity or of the rightholder’, thus implying that rightholders may 
entrust the management of their rights either to a CMO or to an IME of any 
Member State of the European Union. However, the same text states that it is 
without prejudice to ‘Article 180 of Law No 633 of 22 April 1941 in respect of the 
activity of copyright intermediation’, which reserves this activity in the national 
REQUEST FOR A PRELIMINARY RULING OF 5. 1. 2022 – CASE C-10/22 
 
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territory to the SIAE and to the CMOs. In essence, the Italian legislature, while 
fully transposing the spirit of the directive, has introduced a limitation in the form 
of an exception which is illogical and contrary to the principles of the directive. 
21 The national rules, as laid down in Article 4(2) of Legislative Decree No 35 and 
the text currently in force of Article 180 of the Law on Copyright, as amended for 
the purpose of adapting it to the directive, preclude IMEs from operating in Italy, 
thus requiring them to conclude representation agreements with SIAE or with 
other CMOs, while the possibility of direct management by the rightholders 
remains unaffected. 
22 The directive’s recognition of IMEs as legitimate entities operating in copyright 
management and intermediation, in the light of the pro-competitive nature of the 
EU legal order, should require any territorial limitation on their operation to be 
underpinned by specific justification coming within one of the situations expressly 
envisaged by that legal order. It must also be noted that, in many Member States 
of the European Union, statutory reserves in copyright intermediation have 
virtually disappeared and IMEs, including those established in other Member 
States, are permitted to operate in addition to CMOs. 
23 IMEs, like CMOs, are bodies authorised to manage copyright on behalf of more 
than one rightholder, for the collective benefit of those rightholders. The structural 
and functional differences between those entities, if they can be observed in the 
internal regulations and controls, do not seem prima facie relevant to the purposes 
of any limitations on intermediation activities, which, consisting in winning 
mandates and issuing licences in the interests of the rightholders, are structurally 
identical. 
24 In most of its provisions, the directive considers the two aspects of collective 
management of rights (winning mandates from authors and issuing licences to 
users) to be one activity, so that the right of IMEs to operate can be inferred from 
recital 15 of the directive also as a corollary to the right of rightholders to award a 
mandate to such entities freely (‘Rightholders should be free to entrust the 
management of their rights to independent management entities’), in line with its 
pro-competition approach. 
25 The fumus cautelare is therefore contingent on the application of a national rule 
that expresses a principle potentially contrary to the EU legislation that is being 
transposed. 
26 It is clear that the question raised is of relevance to EU law, both because an entire 
national market, in the present case that of Italy, is undoubtedly a substantial part 
of the common market, and because the dispute is between LEA and a collecting 
society lawfully operating in other EU countries and dealing in copyright 
management and intermediation services for both Italian and foreign authors. 
27 If the question is considered to be well founded, the case should be decided by 
application of Article 4(2) of Legislative Decree No 35, which gives rightholders 
LEA 
 
9 
the option of entrusting the management of their rights either to a collective 
management organisation or to an independent management entity of their choice, 
incorporated or established in any Member State, but without reference to 
Article 180 of the Law on Copyright and the reservation provided for therein in 
favour of SIAE and other CMOs; therefore in application of national law that is in 
conformity with the directive and not in direct application of it. 
28 The question is relevant in the present case, since the applicant claims the 
persistent and ongoing unlawfulness of the defendant’s conduct, which is a 
precondition of the injunction requested and of extension of the claim for damages 
also to the subsequent period. 
29 Therefore, it should be assessed whether it is necessary to disapply the national 
rule in order to ensure compliance with the rules of EU law on freedom of 
establishment and freedom to provide services (Articles 49 TFEU and 56 TFEU) 
and of Directive 2014/26/EU, and for that reason it is necessary to refer to the 
Court of Justice for a preliminary ruling the question reformulated below. 
30 The question is of an urgent nature within the meaning of Article 105 of the Rules 
of Procedure of the Court of Justice since, as mentioned above, Jamendo’s activity 
is officially categorised as unlawful, so any rejection of the request for a 
preliminary ruling would result in the need to dispose of the case in favour of 
LEA by means of an urgent injunction. 
THE QUESTION REFERRED FOR A PRELIMINARY RULING 
‘Must Directive 2014/26/EU be interpreted as precluding national legislation 
that reserves access to the copyright intermediation market, or in any event 
the granting of licences to users, solely to entities which can be classified, 
according to the definition in that directive, as collective management 
organisations, to the exclusion of those which can be classified as independent 
management entities incorporated in that Member State or in other Member 
States?’ 
On those grounds 
Orders the immediate transmission of this order […] to the Registry of the Court 
of Justice of the European Union, to be dealt with under the expedited procedure 
pursuant to Article 105 of the Rules of Procedure of the Court. 
[…] 
Rome, 5 January 2022 
[…]