Société de perception et de distribution des droits des artistes-interprètes de la musique et de la danse (Spedidam) and Others v Institut national de l’audiovisuel.
Date: 2019-11-14
28


In the light of those considerations, it should be noted that, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU, the functions of the Court of Justice and those of the referring court are clearly distinct, and it falls exclusively to the latter to interpret national legislation (judgment of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 58 and the case-law cited).
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Thus, it is not for the Court, in the context of a reference for a preliminary ruling, to rule on the interpretation of national provisions. The Court must take account, under the division of jurisdiction between the courts of the European Union and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see, to that effect, judgment of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 22 and the case-law cited).
30


It is also appropriate to recall the Court’s settled case-law according to which, when national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with EU law is inherent in the system of the Treaty on the Functioning of the European Union, since it enables national courts, for matters within their jurisdiction, to ensure that EU law is fully effective when they determine the disputes before them (judgment of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 24 and the case-law cited).
36


At the outset, it should be noted that the protection which those provisions confer on performers must be given a broad scope (see, by analogy, judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 30, and the case-law cited). As stated in recitals 21 and 24 of Directive 2001/29, it is appropriate, on the one hand, to give a broad definition to acts covered by the right of reproduction in order to ensure legal certainty within the internal market. On the other hand, the right to make protected subject matter available to the public, referred to in Article 3(2)(a) of that directive, must be understood as covering all acts of making such matter available to the public not present at the place where the act of making available originated.
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Consequently, that protection must be understood, in particular, in the same way as the protection conferred by copyright, as not being limited to the enjoyment of the rights guaranteed by Article 2(b) and Article 3(2)(a) of Directive 2001/29, but also extends to the exercise of those rights (see, to that effect, judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 31).
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It is also important to note that the rights guaranteed to performers by Article 2(b) and Article 3(2)(a) of Directive 2001/29 are of a preventive nature, in that any act of reproduction or making available to the public of the fixations of their performances requires their prior consent. It follows that, subject to the exceptions and limitations laid down exhaustively in Article 5 of the directive, any use of such protected subject matter by a third party without such prior consent must be regarded as infringing the holder’s rights (see, to that effect, judgments of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraphs 33 and 34, and of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 29 and the case-law cited).
40


However, as the Court, in its judgment of 16 November 2016, Soulier and Doke (C‑301/15, EU:C:2016:878, paragraph 35), has previously pointed out with regard to authors’ exclusive rights, Articles 2(b) and Article 3(2)(a) of Directive 2001/29 do not specify how the performer’s prior consent is to be given, so that those provisions cannot be interpreted as requiring such consent to necessarily be expressed in writing or explicitly. On the contrary, it must be concluded that those provisions also allow the consent to be expressed implicitly, provided, as the Court pointed out in paragraph 37 of that judgment, that the conditions under which implicit consent may be accepted are strictly defined, in order not to deprive the very principle of prior consent of any effect.
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In that regard, first of all, it should be noted that a performer who is himself involved in the making of an audiovisual work so that it may be broadcast by national broadcasting companies, and who is thus present at the place where such a work is recorded for those purposes, first, is aware of the envisaged use of his performance (see, by analogy, judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 43) and, second, gives his performance for the purposes of such use, with the result that it is possible to take the view, in the absence of evidence to the contrary, that he has, as a result of that involvement, authorised the fixation of that performance and its exploitation.