Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (Stim) and Svenska artisters och musikers intresseorganisation ek. för. (SAMI) v Fleetmanager Sweden AB and Nordisk Biluthyrning AB.
Date: 2020-04-02
21


It must be borne in mind that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require his or her involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 30 January 2020, Köln-Aktienfonds Deka, C‑156/17, EU:C:2020:51, paragraph 31 and the case-law cited).
22


Furthermore, it is a matter of settled case-law that the Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, order the reopening of the oral procedure under Article 83 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be decided on the basis of an argument which has not been debated between the parties. However, the Statute of the Court of Justice of the European Union and the Rules of Procedure make no provision for parties to submit observations in response to the Advocate General’s Opinion (judgment of 30 January 2020, Köln-Aktienfonds Deka, C‑156/17, EU:C:2020:51, paragraph 32 and the case-law cited).
28


It should be noted that, in accordance with the case-law of the Court, since the EU legislature did not express a different intention, the expression ‘communication to the public’ used in the two abovementioned provisions must be interpreted as having the same meaning (see, to that effect, judgments of 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraphs 49 and 50, and of 16 February 2017, Verwertungsgesellschaft Rundfunk, C‑641/15, EU:C:2017:131, paragraph 19 and the case-law cited).
29


Furthermore, that expression must be interpreted in the light of the equivalent concepts contained in the texts of international law and in such a way that it is consistent with them, also taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property (see, to that effect, judgments of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 189, and of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraphs 51 to 56).
30


In accordance with settled case-law, the concept of ‘communication to the public’ includes two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’ (judgments of 16 March 2017, AKM, C‑138/16, EU:C:2017:218, paragraph 22; of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 19 and the case-law cited; and of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C‑263/18, EU:C:2019:1111, paragraph 61 and the case-law cited).
31


In order to determine whether the hiring out of vehicles equipped with radio receivers constitutes an act of communication within the meaning of Directives 2001/29 and 2006/115, it is necessary to carry out an individual assessment, in the light of a number of complementary criteria, which are not autonomous and are interdependent. Those criteria must, moreover, be applied both individually and in their interaction with each other, in so far as they may, in different situations, be present to widely varying degrees (see, to that effect, judgment of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 25 and the case-law cited).
32


Of those criteria, the Court has repeatedly emphasised the indispensable role played by the user and the deliberate nature of his intervention. That user makes an ‘act of communication’ when he intervenes, in full knowledge of the consequences of his action, to give his customers access to a protected work, particularly where, in the absence of that intervention, those customers would not be able to enjoy the broadcast work, or would be able to do so only with difficulty (see, inter alia, judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 82 and the case-law cited; of 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 31; and of 14 June 2017, Stichting Brein, C‑610/15, EU:C:2017:456, paragraph 26 and the case-law cited).
35


A supply such as that referred to in the preceding paragraph differs from acts of communication by which service providers intentionally broadcast protected works to their clientele, by distributing a signal by means of receivers that they have installed in their establishment (judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraphs 47 and 54 and the case-law cited).
37


That interpretation cannot be called into question by the argument that vehicle rental companies make available to their customers spaces which Stim and SAMI describe as ‘public’, namely the passenger compartments of hire vehicles, in which it is possible to enjoy protected works using the radio receivers with which those vehicles are equipped. The provision of such a space does not constitute an act of communication, any more than the provision of the radio receivers themselves constitutes such an act. It is also clear from the case-law of the Court that the private or public criterion of the place where the communication takes place is irrelevant (see, to that effect, judgment of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 50).