OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 10 March 2022 ( 1 )

Case C‑716/20

RTL Television GmbH

v

Grupo Pestana S.G.P.S., S.A.,

SALVOR – Sociedade de Investimento Hoteleiro, S.A.

(Request for a preliminary ruling from the Supremo Tribunal de Justiça (Supreme Court, Portugal))

(Reference for a preliminary ruling – Copyright and related rights – Satellite broadcasting and cable retransmission – Concept of ‘cable retransmission’ – Simultaneous and unabridged distribution to the public by cable of a television programme intended for reception by the public – Distribution by a person other than a broadcasting organisation – Distribution on televisions in hotel rooms)

1. Does a broadcaster have the right to prohibit broadcasting and to charge a fee for the retransmission of its free-to-air programmes, received by a hotel by means of a satellite dish and transmitted by coaxial cable to its rooms for the benefit of its guests? Does this retransmission constitute ‘cable retransmission’ within the meaning of Article 1(3) of Directive 93/83/EEC ( 2 ) and can it confer specific rights on the broadcaster where national legislation seems to extend the catalogue of rights conferred by EU law?

I. Legal framework

A. European Union law

2. Article 1(3) of Directive 93/83 provides: ‘… For the purposes of this Directive, “cable retransmission” means the simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public.’

3. Article 8 of Directive 93/83, entitled ‘Cable retransmission right’, states: ‘1. Member States shall ensure that when programmes from other Member States are retransmitted by cable in their territory the applicable copyright and related rights are observed and that such retransmission takes place on the basis of individual or collective contractual agreements between copyright owners, holders of related rights and cable operators.’

4. Article 9(1) of Directive 93/83, entitled ‘Exercise of the cable retransmission right’, provides: ‘Member States shall ensure that the right of copyright owners and holders of related rights to grant or refuse authorisation to a cable operator for a cable retransmission may be exercised only through a collecting society.’

5. Under Article 3 of Directive 2001/29/EC, ( 3 ) entitled ‘Right of communication to the public of works and right of making available to the public other subject matter’: ‘1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. 2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them: … (d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite. 3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’

6. Article 8 of Directive 2006/115/EC, ( 4 ) entitled ‘Broadcasting and communication to the public’, provides at paragraph 3 thereof: ‘3. Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.’

B. Portuguese law

7. Pursuant to Article 176(9) and (10) of the Código do Direito de Autor e dos Direitos Conexos (Portuguese Code of Copyright and Related Rights; ‘the CDADC’): ( 5 ) ‘9. “Broadcasting organisation” means any organisation which makes audio or visual broadcasts, where broadcast means the transmission of sounds or images, or the representation thereof, separately or cumulatively, whether by wire or wireless means, in particular by radio waves, optical fibres, cable or satellite, intended for reception by the public. 10. “Retransmission” means the simultaneous transmission by a broadcasting organisation of a broadcast by another broadcasting organisation.’

8. Pursuant to Article 187 of the CDADC: ‘(1) Broadcasters shall have the right to authorise or prohibit: (a) the retransmission of their broadcasts by radio waves; (b) the fixation of their broadcasts on a physical medium, whether those broadcasts are by wire or wireless means; (c) the reproduction of the fixation of their broadcasts, when they have not been authorised or if it is an ephemeral fixation and the purpose of the reproduction is different from the purpose for which it was made; (d) the making available of their broadcasts to the public, by wire or wireless means, including by cable or satellite, in such a way that members of the public may access them from a place and at a time individually chosen by them; (e) the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee. (2) The rights provided for in this article shall not apply to a cable distributor which only retransmits the broadcasts of broadcasting organisations. (3) A person whose name has been mentioned as such in the broadcast in question, in accordance with established practice, shall be presumed to be a holder of neighbouring rights in a broadcast.’

9. Pursuant to Articles 3 (Definitions) and 8 (Extension to holders of related rights) of Decree-Law No 333/97: ( 6 ) ‘Article 3 For the purposes of this decree: (a) “satellite” means any artificial device placed in space which allows the transmission of broadcast signals intended for reception by the public; (b) “communication to the public by satellite” means the act of introducing, under the control and responsibility of the broadcasting organisation, the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication which leads to the satellite and returns to earth; (c) “cable retransmission” means the distribution to the public, transmitted simultaneously and entirely by cable, of an initial transmission of television or radio programmes intended for reception by the public. … Article 8 The provisions of Articles 178, 184 and 187 of the CDADC and Articles 6 and 7 of this decree-law shall apply to artists, producers of sound and video recordings and broadcasting organisations with regard to the satellite communication to the public of their performances, sound recordings, video recordings and broadcasts, and with regard to cable retransmission.’

II. The facts giving rise to the dispute in the main proceedings and the questions referred for a preliminary ruling

10. RTL Television GmbH is a company based in Germany which broadcasts radio and television programmes via various channels intended for reception by the general public.

11. The TV programmes are broadcast via its television networks by ‘open signal’ – that is to say, without the reception of those programmes in private homes being subject to the payment of a fee.

12. RTL Television (‘RTL’), one of the television channels owned by the abovementioned company, operates in the territory of several Member States and offers viewers a range of television programmes (films, series, shows, documentaries, sporting events, news and current affairs programmes).

13. Although intended for audiences in Germany, Austria and Switzerland, the programmes can be picked up by satellite signal throughout Europe, and therefore also in Portugal, simply by using a satellite dish.

14. RTL has concluded various licensing agreements with TV operators and hotels located in different EU Member States.

15. Grupo Pestana S.G.P.S. (‘Grupo Pestana’) is the parent company of one of the largest Portuguese groups operating in the hotel sector, which includes the subsidiary Salvor, Sociedade de Investimento Hoteleiro, S.A. (‘Salvor’). Salvor, in which Grupo Pestana has a 98.8% stake, operates several hotels in Portugal, and in particular the ‘D. João II’ and ‘Alvor Praia’ hotels.

16. As RTL points out, the ‘D. João II’ and ‘Alvor Praia’ hotels, at least from May 2013 until February 2014, received RTL satellite broadcasts via satellite dishes installed in the hotels, and transmitted them, by coaxial cable, to televisions installed in the rooms.

17. For that reason, RTL brought an action before the Tribunal de Propriedade Intelectual (Intellectual Property Court, Portugal) against Grupo Pestana and Salvor seeking a declaration that the reception and retransmission of RTL broadcasts in the rooms of the ‘D. João II’ and ‘Alvor Praia’ hotels constituted an act of communication to the public of RTL broadcasts within the meaning of Article 187(1)(e) of the CDADC and an act of retransmission of those broadcasts within the meaning of Articles 3 and 8 of Decree-Law No 333/97, and as such was subject to prior authorisation by RTL.

18. Specifically, RTL stated that, under Article 187(1)(e) of the CDADC, in the event of communication to the public of protected works, broadcasters have a series of rights, such as to authorise or prohibit the communication to the public of their broadcasts.

19. According to RTL, those rights were further extended by the provisions of Article 8 of Decree-Law No 333/97, under which broadcasting organisations have the right to authorise or prohibit the cable retransmission of their broadcasts, as set out in Article 3(c), and thus in the case of ‘distribution to the public, transmitted simultaneously and entirely by cable, of an initial transmission of television or radio programmes intended for reception by the public’.

20. However, the Tribunal de Propriedade Intelectual (Intellectual Property Court) dismissed RTL’s action, observing that the transmission of RTL television broadcasts in hotel rooms belonging to Grupo Pestana and Salvor could be considered an act of communication to the public, but that the conditions for the exercise of the exclusive right provided for in Article 187(1)(e) of the CDADC had not been fulfilled.

21. The same court also observed that the case at issue could not be regarded as an act of retransmission, since it had not been performed by a broadcaster.

22. RTL challenged the judgment of the Tribunal de Propriedade Intelectual (Intellectual Property Court) before the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon, Portugal).

23. The Tribunal da Relação de Lisboa (Court of Appeal, Lisbon) upheld the judgment at first instance and rejected the claims made by RTL.

24. RTL brought an appeal in cassation against the judgment of the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon) before the Tribunal Supremo de Justiça (Supreme Court, Portugal), which stayed the proceedings and referred the following questions to the Court for a preliminary ruling: ‘(1) Must the concept of “cable retransmission”, as provided for in Article 1(3) of [Directive 93/83], be interpreted as meaning that it covers, in addition to the simultaneous transmission by one broadcasting organisation of a broadcast by another broadcasting organisation, the distribution to the public, on a simultaneous basis and entirely by cable, of a primary transmission of television or radio programmes intended for reception by the public (whether or not the person performing that distribution to the public is a broadcasting organisation)? (2) Does the simultaneous distribution of the satellite broadcasts of a television channel, through television sets installed in hotel rooms, and by means of coaxial cable, constitute a retransmission of such broadcasts within the meaning of the concept provided for in Article 1(3) of [Directive 93/83]?’

III. Legal analysis

A. Preliminary observations

25. The two questions referred for a preliminary ruling by the referring court can be summed up, in essence, in a single question: does a broadcaster have the right to prohibit broadcasting and to charge a fee for the retransmission of its programmes, received by a hotel by means of a satellite dish and transmitted by coaxial cable to its hotel rooms for the benefit of its guests?

26. The claim made by the applicant in the main proceedings is based on the assumption that the Portuguese legislation extends the broadcaster’s rights in relation to third parties who perform acts of communication to the public on the basis of EU law, where such retransmission takes place ‘by cable’.

27. In other words, Portuguese law, in implementing Directive 93/83, introduced the right for broadcasters to be able to prohibit the retransmission and, in any event, to demand the payment of a fee in situations where a person retransmits a broadcaster’s free-to-air programmes ‘by cable’.

28. According to that interpretation by RTL, followed with certain reservations by the national court, the Portuguese legislature appears to have introduced a concept of ‘cable distributor’ different from the one that can be construed from EU law: namely, anyone who carries out that activity on a professional basis using conventional cable networks would, under that interpretation, be placed on the same footing as entities such as hotels, which, by picking up the free-to-air signal via a satellite dish, reproduce the signal by coaxial cable in their hotel rooms.

29. The question therefore revolves around the concept of ‘cable retransmission’, and more importantly, who can be considered a ‘cable distributor’, that is to say, whether it is necessary for that person to be a broadcasting organisation, whether it is sufficient for it to use any ‘cable’ technology, or conversely whether – and this seems to me to be the best option – it must be a ‘professional cable distributor’ operating via traditional cable networks.

30. In my view, situations such as the one at issue in the present case, as the Commission argued convincingly in its written observations and at the hearing, fall into the category of communication to the public, under the conditions laid down by EU law so that the retransmission of a free-to-air television programme can give rise to specific rights in favour of broadcasters.

31. As a preliminary point, it seems worth clarifying, in line with the case-law of the Court, that two categories of persons can assert intellectual property rights relating to television broadcasts: first, the authors of the works concerned and, secondly, the broadcasters. ( 7 )

32. Broadcasters can invoke the right of fixation of their broadcasts which is provided for in Article 7(2) of Directive 2006/115, the right of communication of their broadcasts to the public, within the meaning of Article 8(3) of that directive, or the right to reproduce fixations of their broadcasts which is confirmed by Article 2(e) Directive 2001/29. ( 8 )

33. In the interests of clarity, I will examine the legal questions behind the proposed answers to the two questions referred for a preliminary ruling together, given how closely they are connected, and will propose a single, detailed answer.

34. My analysis will begin with a brief description of the purpose and nature of Directive 93/83 and its historical and technological context. After considering the concepts of ‘cable’, ‘cable retransmission’ and ‘cable distributor’, I will briefly examine the various directives cited and the relevant case-law of the Court of Justice.

35. This will bring me to the heart of the matter – namely, the relationship between the concepts of ‘cable retransmission’ and ‘communication to the public’ – so that I can assess the case at issue in these proceedings.

1. Purpose and context of Directive 93/83

36. The provisions of Directive 93/83, adopted in response to the advent of new technology for ‘cable operators’, should be placed in their specific historical and technological context and read in the light of the case-law of the Court of Justice, in order to be interpreted systematically and coherently in relation to European rules on intellectual property.

37. Directive 93/83 on satellite broadcasting and cable retransmission ‘has a certain and quite limited ambit, namely to foster pan-European broadcasting services by facilitating satellite broadcasting and cable retransmission of radio and television programmes.’ ( 9 )

38. In other words, the directive was intended to facilitate satellite broadcasting and cable retransmission by encouraging the granting of licences for the cable retransmission of a programme by collecting societies (Article 9 of the directive). ( 10 )

39. Therefore, its objective is not to confer rights, but to enable full use to be made of the new communications technology (satellite and cable) introduced at the time, and in particular, to address certain shortcomings in the contractual system within the market for the granting of cross-border licences in the case of cable retransmission. ( 11 )

40. More specifically, it is clear from Article 8 of Directive 93/83 that the directive does not require the Member States to establish a specific cable retransmission right or define the scope of any such right. It simply provides an obligation for Member States to ensure that the cable retransmission of broadcasts from other Member States takes place in their territory in accordance with existing copyright and related rights.

41. The directive in question also provides for minimal harmonisation in the sense that it does not preclude forms of contractual negotiation of rights related to satellite and cable broadcasting operations. ( 12 )

42. Indeed, the Court has clarified that Directive 93/83 ‘provides for minimal harmonisation of certain aspects of protection of copyright and related rights solely in the case of communication to the public by satellite or cable retransmission of programmes from other Member States’. ( 13 )

43. As already mentioned, the regulated and harmonised aspects relate to encouraging the granting of licences for the cable retransmission of a programme by a collecting society.

44. However, as we will see, this does not mean that in implementing Directive 93/83, concepts of EU law can be assigned a different meaning from their established one, or that it can be inferred from this that rights may be conferred contrary to the systematic interpretation of the directive itself.

B. Questions referred for a preliminary ruling

1. The concept of ‘cable distributor’

45. According to Article 1(3) of Directive 93/83, ‘cable retransmission’ means the retransmission of an initial transmission from one Member State to another through a cable system. Furthermore, that retransmission must be simultaneous, unaltered and unabridged compared with the initial transmission which may, in turn, be transmitted by wire or by wireless means, over the air or by satellite. Lastly, it is specified that the object of the initial transmission, and therefore of the retransmission, must consist of radio and television programmes intended for reception by the public.

46. According to Articles 8 and 9, the conditions for exercising the cable retransmission right must be fulfilled by a ‘cable distributor’.

47. However, Directive 93/83 does not define the concepts of ‘cable’ or ‘cable distributor’, taking them for granted, so it is not possible to determine which organisations may carry out ‘cable retransmission’.

48. Although the Court has not addressed that issue directly in a judgment before, the words of Advocate General Saugmandsgaard Øe in his Opinion in the ITV 2 case (ITV Broadcasting and Others, C‑275/15, EU:C:2016:649) seem cogent and in line with the interpretation proposed.

49. The comments made by Advocate General Øe related to a different dispute than the one in the present case, in which it was not broadcasters’ rights that were at issue, but copyright, and the provisions of EU law cited in the judgment were not exactly the same as those contained in Directive 93/83. ( 14 )

50. Nevertheless, the reasoning followed may, in my view, still be relevant in the present case, in so far as it offers a convincing interpretation of the concepts of ‘cable’ and ‘cable distributor’ which is valid for the entire corpus of rules on copyright and related rights.

51. The concept ‘cable’ appears not only in Directive 2001/29, but is also used in certain of the directives on which Directive 2001/29 is based, namely Directives 92/100, 93/83 and 93/98.

52. Given the requirements of unity of the EU legal order and its coherence, Advocate General Saugmandsgaard Øe states that ‘the concepts used by that body of directives must have the same meaning, unless the EU legislature has expressed a different intention in a specific legislative context’. ( 15 )

53. Since none of the abovementioned directives defines the concept of ‘cable’, that concept should be interpreted in the light of its (technological) context and the objectives pursued by the directives.

54. Advocate General Saugmandsgaard Øe goes on to say that ‘as regards the context in which the concept of “cable” occurs, it should be observed that that concept is used, in all the directives in question, in the light of other technologies, in particular “satellite” broadcasting. The words “by wire or over the air, including by cable or satellite”, in Article 2(e) and Article 3(2)(d) of Directive 2001/29, give the impression, moreover, that the concepts of “cable” and “satellite” are, respectively, the sub-categories of the wider concepts of “wire” and “over the air”.’ ( 16 )

55. Directive 93/83 also makes a clear distinction between ‘satellite broadcasting’ and ‘cable retransmission’. Therefore, I am persuaded by Advocate General Saugmandsgaard Øe’s argument that, in relation to the objectives of Directive 2001/29, it must be assumed that the EU legislature was fully aware of the choice of the terminology used in that directive. In other words, if the EU legislature had intended to give the concept of ‘cable’ within the meaning of Directive 2001/29 a technologically neutral meaning, it must be considered that it would have chosen a more general concept, or that it would at least have made clear that the concept of ‘cable’ included other technologies. ( 17 )

56. Advocate General Saugmandsgaard Øe concludes on this point: ‘The foregoing considerations as a whole support the conclusion that the concept of “cable”, used in Article 9 of Directive 2001/29, is restricted to traditional cable networks operated by conventional cable service providers.’ ( 18 )

57. I consider that this argument may also be transposed to the present case: although the objectives of Directive 2001/29 are different ( 19 ) from those of Directive 93/83, I would point out that Directive 93/83 is intended to enable full use to be made of the new communications technology (satellite and cable) introduced at the time, and in particular, to address certain shortcomings in the contractual system within the market for the granting of cross-border licences in the case of cable retransmission.

58. In view of the technological and historical context and the purposes of the directives, it is not, therefore, a case of establishing the meaning of a concept of EU law by making it impervious to technological change, but of interpreting the system in which the concepts of ‘cable’ and ‘cable retransmission’ are used in the various directives, in order to conclude that a ‘cable distributor’ can only be an entity that uses the traditional cable network for professional purposes, as opposed to the satellite network in the summa divisio of Directive 93/83.

59. As regards the first question referred for a preliminary ruling, therefore, I consider that this may stem from terminological confusion of the concept of ‘retransmission’ in the various sources cited by the referring court.

60. There seems to me to be no doubt that ‘cable retransmission’ can also be performed by persons other than broadcasting organisations: it is sufficient that they are ‘(professional) cable distributors’.

61. However, this does not alter the terms of the question for a resolution of the case at hand. Moreover, it inevitably shifts the focus to the second question referred for a preliminary ruling: as argued above, the term ‘cable distributor’ must be interpreted in the traditional sense, taking into account the prevailing technology at the time of the adoption of Directive 93/83, and in particular, traditional cable networks and their professional distributors.

2. The concept of ‘act of communication to the public’ for retransmission in hotels

62. In my view, we need to examine the concept of ‘act of communication to the public’, which, as we will see, is better suited to the present case than the concept of ‘cable retransmission’ referred to in Article 1(3) of Directive 93/83.

63. It is on the basis of this concept that EU law, in the case of retransmission by other parties, grants rights to authors and, under certain conditions, to broadcasters.

64. As regards the case-law on communication to the public by hotels, the Court held in Egeda ( 20 ) that the fact that a hotel establishment receives satellite or terrestrial television signals and distributes them by cable to the various rooms of that hotel is an act of communication to the public.

65. Even since the entry into force of Directive 2001/29, various judgments have determined that a hotel which has televisions or radios in its hotel rooms to which it transmits programme-carrying signals is effecting a communication to the public. ( 21 )

66. In line with the Commission’s observations, I consider that the activity of a hotel which transmits the signal received to hotel rooms for the benefit of guests can be considered a communication of works to the public within the meaning of Article 3 of Directive 2001/29, in respect of the authors.

67. However, with regard to the broadcasters, that activity must be considered within the meaning of Article 8(3) of Directive 2006/115. ( 22 )

68. Therefore, although the hotel’s activity can be considered a communication to the public, the conditions laid down in EU law and in the case-law of the Court ( 23 ) for the exercise of rights by broadcasters can essentially be likened to the specific economic advantage enjoyed by the person retransmitting the television programme broadcast free-to-air by the broadcasting organisation (for example, the entrance fee).

3. Categorisation of the present case and answer to the questions referred for a preliminary ruling

69. Having clarified the concepts of ‘cable retransmission’ and ‘cable distributor’ in EU law and summarised the concept of ‘communication to the public’, I will make a few comments on the argument put forward by the applicant in the main proceedings, with particular reference to the conditions laid down in order for a communication to the public by a hotel to give rise to rights in favour of the broadcaster.

70. This will lead us to the conclusion that the present case can be regarded as a communication to the public, rather than a cable retransmission.

71. The applicant in the main proceedings is mistaken in its interpretation that the retransmission of free-to-air television programmes by hotels for the benefit of guests staying in the rooms is both a communication to the public and a cable retransmission, with the result that the broadcasters may enjoy specific rights by treating those hotels as a ‘cable distributor’.

72. The mistake probably stems from two misinterpretations of the relevant provisions of EU law and a probable misinterpretation of national law in the light of EU law – although this will need to be examined by the national court.

73. In the first place, the concept of ‘cable retransmission’ in Directive 93/83, as the Commission made clear in its observations and as set out above in the context of a systematic interpretation, is historical and fixed, and refers to the retransmission performed by a person who is a professional cable operator via traditional cable networks.

74. In the second place, the conditions for the remuneration of an act of communication to the public, as seen in the preceding paragraph, do not lie in the ‘subjective’ circumstance of the economic or entrepreneurial nature of the person that retransmits a free-to-air transmission (in this case, a hotel group), but in the specific economic advantage that that person derives from the retransmission (the ‘objective’ circumstance).

75. In the third place, in my opinion, without prejudice to the competence of the national court to draw the appropriate conclusions in this specific case, RTL’s interpretation that Portuguese law extends the concept of ‘cable retransmission’ provided for in Directive 93/83 and that therefore, in view of the minimal harmonisation sought by that directive, broadcasting organisations enjoy specific rights not recognised by the directive in respect of entities such as hotels, regarded as ‘cable distributors’, is not the only possible interpretation and is not in conformity with EU law.

76. According to RTL, the Verwertungsgesellschaft Rundfunk judgment ( 24 ) should be interpreted broadly, in so far as it encourages Member States to introduce additional rights to remunerate situations such as the one at issue. In Portugal, this is covered by the provisions cited in the order for reference by the national court.

77. I do not agree with RTL’s conclusions.

78. I consider that the granting of additional rights to broadcasters compared with those provided for in EU law should have been more explicit, and more importantly, based on reasons that can be found in the systematic interpretation of the body of rules contained in EU law.

79. Using this cumbersome mechanism of categorising the case as cable retransmission within the meaning of Directive 93/83 in order to treat hotels as traditional cable operators does not, in my view, have the desired effect.

80. Although in principle EU law does not preclude national legislatures from introducing – with well-defined mechanisms for individual and collective management which do not distort the markets – additional rights to those provided for, what national law certainly cannot do is to give a different meaning to concepts defined by EU law.

81. It may be possible – as I believe is already the case – to conclude agreements between broadcasters and other persons on the basis of contractual freedom. Moreover, it is apparent from the documents before the Court that this has already happened. However, it does not mean that the existence of individual rights in this sense can be inferred from EU law, nor that national provisions can do so solely by reference to concepts of EU law to which a different content is assigned.

82. In the present case, it is clear that the hotel does not derive any specific economic advantage from the retransmission in hotel rooms of free-to-air television programmes for the benefit of guests, since experience shows that this has no bearing on the price charged for the room.

83. As is clear from Verwertungsgesellschaft Rundfunk, ( 25 ) the communication of television and radio programmes by means of television sets installed in hotel rooms does not constitute a communication made in a place accessible to the public against payment of an entrance fee, since the price of a hotel room constitutes the consideration for the accommodation service, to which, according to the hotel category, certain additional services are added, such as the communication of TV and radio broadcasts by means of receiving equipment in the rooms, which are normally included in the price of the overnight stay. ( 26 )

84. Lastly, the argument put forward by RTL in its observations, and emphatically reiterated at the hearing, that the interpretation proposed – as also supported by the Commission – risks causing serious harm to the copyright system in Europe, is unfounded.

85. First, the claims made by RTL as a broadcaster have no impact on the rights of authors, who – as we saw earlier and as we already know – come under separate rules in EU law to the rights of broadcasting organisations (when they are not also technically the authors of the programmes, but broadcast free-to-air television programmes, as in the present case).

86. Secondly, even if the rights of broadcasters are taken into account, it is known that the rights arising from the retransmission of television programmes vary considerably in the system of EU law, depending on the chosen business model: the pay TV system involves a specific type of remuneration by private and commercial users (although normally to a different extent), whereas in free-to-air retransmission, the broadcaster is remunerated through advertising revenues.

87. The transmission of ‘pay TV’ channels, for which the guest is normally required to pay a specific room supplement and which therefore results in the recognition of economic rights (a fee) for the broadcaster, is a different case altogether. ( 27 )

88. It would be a mistake to confuse these two business models.

89. Indeed, it is by following the interpretation proposed by RTL that the risk of misinterpretation arises, in so far as it goes beyond the situation described here: cable retransmission is done solely by professional cable operators, while communication to the public – regardless of the retransmission system – provides remuneration for the broadcasters, depending on the business model adopted under the conditions clearly laid down in EU law and the case-law of the Court.

90. Rather, this would be a situation in which the mere fact that the person who retransmits free-to-air television programmes by coaxial cable within a building also carries out a business activity essentially makes them comparable to a professional cable operator. It is extremely difficult to distinguish between persons who are a business from those who provide a public service, or private citizens who carry out business activities.

91. Lastly, the existence of specific agreements under which certain broadcasting organisations may have obtained, by contractual means, remuneration for the retransmission of free-to-air programmes by hotel groups does not alter the terms of the question or challenge the soundness of the interpretation proposed.

92. Such agreements can always be negotiated and are not prohibited under EU law. However, it cannot be inferred from this that EU law recognises certain rights for broadcasting organisations, or that national laws may recognise them, by attributing different meanings to concepts defined in EU law.

4. The consequences for the referring court

93. I will make a few final points about the domestic law involved in this case, explaining some of the concepts already mentioned.

94. Having clarified the terms in which, in my opinion, EU law must be interpreted, a number of points are still to be made to assist the referring court in determining whether or not the law of the Member State in which the main proceedings are held is in conformity with EU law.

95. It will be for the referring court to apply the principles of EU law to the national law and thus determine whether it can be interpreted in conformity with EU law.

96. Although in principle the Member States do indeed have discretion to introduce more favourable provisions into domestic law to protect both authors and broadcasting organisations (within the limits established by EU law), in keeping with the previous points I observe the following.

97. Directive 93/83 does not confer specific rights on broadcasters but has other purposes, namely to facilitate satellite broadcasting and cable retransmission by encouraging the granting of licences for the cable retransmission of a programme by collecting societies.

98. The concepts of ‘cable’, ‘cable retransmission’ and ‘cable distributor’, although not explicitly defined in Directive 93/83, can be inferred from the purposes of the directive, from its historical and technological context, and from the overall scheme of the relevant directives. As a result, they must be regarded as concepts of EU law.

99. For those reasons, the national provisions of a Member State cannot assign a different meaning to those concepts, not even in order to extend the catalogue of rights for broadcasting organisations.

100. I consider, therefore, without prejudice to the competence of the national court to apply the principles described above to national law, that it is possible and indeed desirable to interpret Portuguese law in conformity with EU law, in that, without prejudice to the possibility of granting additional rights to broadcasting organisations, within the limits established by EU law, it does not attribute – by way of interpretation or otherwise – a different content to concepts already defined by EU law.

IV. Conclusion

101. On the basis of all the foregoing considerations, I propose that the Court should answer as follows the questions referred for a preliminary ruling by the Supremo Tribunal de Justiça (Supreme Court, Portugal): The concept of ‘cable retransmission’ referred to in Article 1(3) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission refers to the retransmission of an initial transmission by cable distributors, which effect such retransmission as professional operators in the context of a conventional cable network. The simultaneous distribution by coaxial cable of the transmissions of a television channel broadcast by satellite, by means of the various television sets installed in hotel rooms, does not constitute a ‘cable retransmission’ within the meaning of Article 1(3) of Directive 93/83, since the hotel cannot be regarded as a cable distributor within the meaning of that directive.

( 1 ) Original language: Italian.

( 2 ) Council Directive of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15).

( 3 ) 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).

( 4 ) Directive of the European Parliament and of the Council 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28).

( 5 ) Decree-Law No 63/85 approving the Código do Direito de Autor e dos Direitos Conexos (Diário da República No 61, Series I, 14 March 1985, available at https://dre.pt/web/guest/legislacao-consolidada/-/lc/34475475/view).

( 6 ) Decree-Law No 333 of 27 November 1997, which transposes into domestic law Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (Diário da República No 275, Series I-A, 27 November 1997, available at https://dre.pt/web/guest/pesquisa/-/search/406485/details/normal?q=Decreto-Lei+n.%C2%BA%20333%2F97).

( 7 ) See judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 148).

( 8 ) See judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 150).

( 9 ) Rosén, J., ‘The satellite and cable directive’, in EU Copyright Law: A Commentary, Edward Elgar Publishing, 2014, p. 206.

( 10 ) Stamatoudi, I.A., and Torremans, P., EU Copyright Law: A Commentary, Edward Elgar Publishing, 2014, p. 408.

( 11 ) Kur, A., Dreier, T., and Luginbuehl, S., European Intellectual Property Law, Elgar, 2019, pp. 304-305.

( 12 ) See recitals 33, 34 and 35.

( 13 ) See judgment of 1 March 2017, ITV Broadcasting and Others (C‑275/15, EU:C:2017:144, paragraph 21).

( 14 ) The referring court asked, in essence, whether the concept of ‘cable’ in Article 9 of Directive 2001/29 was linked to a particular technology, restricted to traditional cable networks operated by conventional cable service providers, or alternatively whether it had a technologically neutral meaning which could include functionally similar services transmitted via the internet.

( 15 ) See Opinion in ITV Broadcasting and Others (C‑275/15, EU:C:2016:649, point 70).

( 16 ) See Opinion of Advocate General Saugmandsgaard Øe in ITV Broadcasting and Others (C‑275/15, EU:C:2016:649, point 72).

( 17 ) See Opinion in ITV Broadcasting and Others (C‑275/15, EU:C:2016:649, point 73).

( 18 ) See Opinion in ITV Broadcasting and Others (C‑275/15, EU:C:2016:649, point 74).

( 19 ) To respond, at EU level, to the challenges of protecting copyright and related rights presented by the new information society services made possible by the internet.

( 20 ) See judgment of 3 February 2000 (C‑293/98, EU:C:2000:66, paragraph 29).

( 21 ) See the Commission’s observations, paragraph 70 and the case-law cited.

( 22 ) Article 8(3) of Directive 2006/115 provides that: ‘Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.’

( 23 ) See judgment of 16 February 2017, Verwertungsgesellschaft Rundfunk (C‑641/15, EU:C:2017:131).

( 24 ) Judgment of 16 February 2017 (C‑641/15, EU:C:2017:131).

( 25 ) See judgment of 16 February 2017 (C‑641/15, EU:C:2017:131).

( 26 ) See judgment of 16 February 2017, Verwertungsgesellschaft Rundfunk (C‑641/15, EU:C:2017:131, paragraphs 24 and 27).

( 27 ) As provided for in Article 3(2)(d) of Directive 2001/29. The hotels in question distribute RTL’s satellite broadcasts not on a ‘deferred’ basis, but simultaneously, by coaxial cable, to the various television sets installed in the hotel rooms. Therefore, it is not a question of making fixations of performances available to the public by a broadcaster comparable to a video-on-demand service.