62024CJ0161_RES
Case C‑161/24
OSA, z.s., formerly OSA – Ochranný svaz autorský pro práva k dílům hudebním, z.s.
v
Úřad pro ochranu hospodářské soutěže
(Request for a preliminary ruling from the Krajský soud v Brně)
Judgment of the Court (Third Chamber) of 18 December 2025
(Reference for a preliminary ruling – Competition – Article 102 TFEU – Abuse of dominant position – Collective management organisation handling copyright – Rates for royalties for the provision of a licence to make copyrighted works available – Hotel establishments – Calculation method – Failure to take into account the rate of occupancy of rooms – Unfair prices)
Approximation of laws – Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society – Communication to the public – Concept – Making available of radio or television sets enabling signals to be picked up and protected works to be broadcast in the rooms of a hotel establishment – Included
(European Parliament and Council Directive 2001/29, Art. 3(1))
(see paragraphs 23-25)
Dominant position – Abuse – Unfair prices – Assessment – Royalties applied by a collective management organisation handling copyright – Royalties for granting a licence to hotel establishments to make copyrighted works available – Method for calculating the royalties – Failure to take into account the occupancy rate of the hotel establishments – Practice liable to lead to prices which are excessive in relation to the nature and scope of the use of the works, and the economic value generated by that use – Assessment by the referring court
(Art. 102 TFEU, second para., (a))
(see paragraphs 27-37, 40, operative part 1)
Dominant position – Abuse – Unfair prices – Assessment – Royalties applied by a collective management organisation handling copyright – Comparison with the royalties applied in other Member States – Choice of the reference States – Criteria – Significant difference in the royalty levels – Indicative of abuse
(Art. 102 TFEU)
(see paragraph 38)
Dominant position – Abuse – Unfair prices – Assessment – Royalties applied by a collective management organisation handling copyright – Need to ascertain whether the difference between the costs incurred by that organisation and the prices charged is excessive – None
(Art. 102 TFEU)
(see paragraph 39)
Dominant position – Abuse – Prohibition – Purpose – Sanction of practices likely to cause, even indirectly, harm to consumers by undermining an effective structure of competition – Need to prove direct harm caused to consumers – None – Justification of the practices by their positive effects for consumers – Conditions
(Arts 3(1)(b) and 102 TFEU; Protocol No 27 annexed to the EU and FEU Treaties)
(see paragraphs 42-44, operative part 2)
Dominant position – Abuse – Effect on trade between Member States – Criteria for assessment – Potential and significant effect – Royalties applied by a collective management organisation handling copyright with a monopoly in a Member State – Organisation handling the rights of rightsholders who are nationals of that Member State and those of foreign rightsholders – Practice capable of appreciably affecting trade between Member States
(Art. 102 TFEU)
(see paragraphs 46-49, operative part 3)
Résumé
Ruling on a request for a preliminary ruling, the Court of Justice states the conditions under which the failure, by a collective management organisation handling copyright, to take account of the occupancy rate of rooms in hotel establishments when calculating the royalties payable by the latter for the grant of a licence to make copyrighted works available may constitute an abuse of a dominant position within the meaning of Article 102 TFEU.
OSA, one of the collective management organisations handling copyright in the Czech Republic, holds a dominant position on the relevant market.
By a decision of 18 December 2019, the Úřad pro ochranu hospodářské soutěže (the Office for the Protection of Competition, Czech Republic) (‘the Czech competition authority’) found that, during the period from 19 May 2008 and 6 November 2014, OSA had charged hotel establishments, for their use of copyrighted works by means of television and radio receivers installed in the rooms of those establishments, royalties calculated without taking account of the occupancy rate of the hotel establishments concerned, without any objective justification. According to that decision, OSA thus had required the payment of royalties in respect of unoccupied rooms in which no use of such works had taken place.
The Czech competition authority took the view that, by that practice, OSA had imposed unfair trading conditions on the national market for the granting of licences for the use of copyrighted works, which constitutes an abuse of a dominant position prohibited by Article 102 TFEU and by the corresponding provisions of Czech competition law. It therefore ordered OSA to pay a fine of 10676000 Czech koruny (CZK) (approximately EUR 429000) and prohibited that organisation from engaging in that practice.
OSA submitted a complaint against that decision, which the Chairperson of the Czech competition authority rejected by a decision of 23 November 2020.
OSA then brought an action against that decision before the Krajský soud v Brně (Regional Court, Brno, Czech Republic), which decided to put questions to the Court regarding the interpretation of the concept of ‘abuse of a dominant position’, within the meaning of Article 102 TFEU, in a situation such as that at issue in the case before it.
Findings of the Court
The Court points out that a collective management organisation which has a monopoly, in the territory of a Member State, over the management of copyright relating to a category of protected works and which makes those works available, in return for the payment of royalties, to economic operators so that those operators may communicate them to the public, must be regarded as an undertaking which has a dominant position in a substantial part of the internal market, within the meaning of Article 102 TFEU. In the present case, it is not disputed that OSA holds such a dominant position.
It then states that, where the allegedly unfair nature of the conduct of such a collective management organisation concerns the level of those royalties, that pricing must be assessed in the light of the criteria in relation to excessive prices. Such conduct may consequently constitute abuse prohibited under Article 102 TFEU if that organisation charges a price which is excessive in relation to the economic value of the service provided, which must be assessed in the light of all the circumstances of the case.
In that regard, it is necessary to take account not only of the economic value of the collective management service as such, but also of the nature and scope of the use of the works and of the economic value generated by that use.
As regards hotel establishments, the making available of radio and television sets capable of capturing signals and thus of broadcasting protected works in the rooms of such an establishment constitutes communication to the public, within the meaning of Article 3(1) of Directive 2001/29/EC, (
1
) without it being decisive to ascertain whether or not that public, which consists of the customers present in that hotel establishment, chooses to access the works thus made available. On the other hand, for the purposes of the application of Article 102 TFEU, the number of persons of which that public consists is a relevant factor when assessing, first, what the scope is of the potential use of the copyrighted works and, second, what benefit the hotel establishment may derive from the licence it acquires from the collective management organisation.
The occupancy rate of the hotel establishments is accordingly a fact which must be taken into account for the purposes of evaluating, using a statistical model or on the basis of other objective, stable, readily accessible and verifiable criteria, the scope of the use of the works and the economic value which their use represents and, thus, for the purposes of determining whether the royalties required for the grant of the licences which allow the communication of the works to the public are ‘unfair’ within the meaning of point (a) of the second paragraph of Article 102 TFEU.
Thus, it cannot in principle be accepted that a collective management organisation may require from hotel establishments royalties which do not take into account the fact that a significant proportion of their rooms is inaccessible to the customers, because, for example, of a seasonal reduction in the activity of such an establishment, partial closure for renovation or an exceptional situation such as a health crisis.
More generally, while it may be based on a flat rate, the royalty must take account, at the very least, of an estimation of the number of copyrighted works actually used.
In the present case, it is for the referring court, in the light of all the circumstances of the case, including the availability and reliability of the data in relation to the occupancy rate of the hotel establishments, and the technological tools in existence, to assess whether it was possible for OSA, without it entailing a disproportionate increase in the expenses incurred by it for the purposes of the management of its agreements with the users of the protected works and the monitoring of the use of the copyrighted works, to take into account, in setting the royalties, the foreseeable occupancy rate in the hotel establishments.
It therefore cannot be ruled out that the method applied to calculate the royalties, which did not take into account the occupancy rate of the hotel establishments, must be classified as ‘abuse’ within the meaning of Article 102 TFEU. If a method for calculation of the royalties which took account of that occupancy rate could be used at a reasonable cost and entailed a substantial reduction in the amount of the royalties, the use of the current calculation method could be regarded as leading to unfair prices, within the meaning of point (a) of the second paragraph of Article 102 TFEU.
That finding is without prejudice to the obligation, on the referring court, to take account of any other factor which may also be relevant for the purposes of assessing whether or not the level of the royalties is fair. Such factors may support or invalidate any indicia of a potential abuse of a dominant position which may stem from a failure to take into account the occupancy rate of hotel establishments.
As regards the burden of proof borne by the national competition authority, the Court states, first, that the finding of abuse of a dominant position is substantiated to the requisite legal standard where it is established that the practice concerned is capable of impairing an effective competition structure, without it being necessary to prove that that practice may also cause direct harm to consumers.
Secondly, a competition authority is required to prove that an abuse has an appreciable effect on trade between Member States. The abusive prices charged by a collective management organisation holding a monopoly are liable to produce an effect on cross-border trade where organisation manages not only the rights of rightsholders who are nationals of the Member State in which it has a monopoly, but also those of rightsholders of other Member States.
(
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)	Directive 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 (OJ 2001 L 167, p. 10).