Stichting ter Exploitatie van Naburige Rechten (SENA) v Nederlandse Omroep Stichting (NOS).
Date: 2003-02-06
23.  As the United Kingdom points out, the Court has already held that the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question (see, for example, Case 327/82   Ekro   [1984] ECR 107, paragraph 11; and Case C-287/98   Linster   [2000] ECR I-6917, paragraph 43, and Case C-357/98   Yiadom   [2000] ECR I-9265, paragraph 26).
24.  That applies to the concept of equitable remuneration in Article 8(2) of Directive 92/100.  Pursuant to the principle of the autonomy of Community law, it is a concept that must be interpreted uniformly in all Member States.
34.  In the absence of any Community definition of equitable remuneration, there is no objective reason to justify the laying down by the Community judicature of specific methods for determining what constitutes uniform equitable remuneration, which would necessarily entail its acting in the place of the Member States, which are not bound by any particular criteria under Directive 92/100 (see, to that effect, Case C-131/97   Carbonari   [1999] ECR I-1103, paragraph 45).  It is therefore for the Member States alone to determine, in their own territory, what are the most relevant criteria for ensuring, within the limits imposed by Community law, and particularly Directive 92/100, adherence to that Community concept.
35.  In that connection, it is apparent that the source of inspiration for Article 8(2) of Directive 92/100 is Article 12 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations signed in Rome on 26 October 1961.  That convention provides that the payment of equitable remuneration, and the conditions for sharing that remuneration are, in the absence of agreement between the various parties concerned, to be established by domestic law and simply lists a number of factors, which it states to be non-exhaustive, non-binding and potentially relevant, for the purposes of deciding what is equitable in each case.
36.  In those circumstances, the Court's role, in the context of a dispute brought before it, can only be to call upon the Member States to ensure the greatest possible adherence throughout the territory of the Community to the concept of equitable remuneration, a concept which must, in the light of the objectives of Directive 92/100, as specified in particular in the preamble thereto, be viewed as enabling a proper balance to be achieved between the interests of performing artists and producers in obtaining remuneration for the broadcast of a particular phonogram, and the interests of third parties in being able to broadcast the phonogram on terms that are reasonable.
37.  As the Commission points out, whether the remuneration, which represents the consideration for the use of a commercial phonogram, in particular for broadcasting purposes, is equitable is to be assessed, in particular, in the light of the value of that use in trade.