OSA — Ochranný svaz autorský pro práva k dílům hudebním o.s. v Léčebné lázně Mariánské Lázně a.s.
Date: 2014-02-27
23. In that respect, it must be noted that the principal objective of Directive 2001/29 is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. It follows that the concept of ‘communication to the public’ in Article 3(1) of that directive must be interpreted broadly, as recital 23 in the preamble to the directive indeed expressly states (Case C‑607/11 ITV Broadcasting and Others  [2013] ECR, paragraph 20 and the case-law cited).
25. First of all, the concept of ‘communication’ must be construed as referring to any transmission of the protected works, irrespective of the technical means or process used (Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others  [2011] ECR I‑9083, paragraph 193).
26. Therefore, the operator of a spa establishment carries out a communication when it deliberately transmits protected works, by intentionally distributing a signal through television or radio sets, in the rooms of the patients of that establishment (see, to that effect, Football Association Premier League and Others , paragraph 196, and Case C‑162/10 Phonographic Performance (Ireland)  [2012] ECR, paragraph 40).
27. Furthermore, it must be noted that the term ‘public’ in Article 3(1) of Directive 2001/29 refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons ( ITV Broadcasting and Others , paragraph 32).
28. As regards that last criterion specifically, the cumulative effect of making the works available to potential recipients should be taken into account. It is in particular relevant in that respect to ascertain the number of persons who have access to the same work at the same time and successively (Case C‑306/05 SGAE  [2006] ECR I‑11519, paragraph 39, and ITV Broadcasting and Others , paragraph 33).
31. It must also be pointed out that, in order for there to be a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is also necessary for the work broadcast to be transmitted to a new public, that is to say, to a public which was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public ( Football Association Premier League and Others , paragraph 197 and the case-law cited).
32. Like the guests of a hotel, the patients of a spa establishment constitute such a new public. The spa establishment is the organisation which intervenes, in full knowledge of the consequences of its action, to give access to the protected work to its patients. In the absence of that intervention, its patients would not, in principle, be able to enjoy the broadcast work (see, to that effect, SGAE , paragraphs 41 and 42).
43. In that respect, it must be recalled that, according to settled case-law, even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties (Case C‑176/12 Association de médiation sociale  [2014] ECR, paragraph 36 and the case-law cited).
44. However, the Court has held that a national court, when hearing a case between individuals, is required, when applying the provisions of domestic law, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive (see, to that effect, Association de médiation sociale , paragraph 38 and the case-law cited).
45. Nevertheless, the Court has stated that this principle of interpreting national law in conformity with European Union law has certain limits. Thus the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem ( Association de médiation sociale , paragraph 39 and the case-law cited).
46. In addition, since, in the context of the reasons stated for the second question, the referring court raises an issue concerning the real nature of a collecting society such as OSA, referring to Case C‑188/89 Foster and Others  [1990] ECR I‑3313, it must be added that such a collecting society would still not be able to rely on Article 3(1) of Directive 2001/29 in order to set aside national legislation contrary to that provision if it were to be regarded as an emanation of the State.
47. If that were the case, the situation, in circumstance such as those in the main proceedings, would not be that of an individual invoking the direct effect of a provision of a directive against a Member State, but rather the reverse. It is settled case-law that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (Case C‑282/10 Dominguez  [2012] ECR, paragraph 37 and the case-law cited).
48. In view of the foregoing, the answer to the second question is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that it cannot be relied on by a collecting society in a dispute between individuals for the purpose of setting aside national legislation contrary to that provision. However, the national court hearing such a case is required to interpret that legislation, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive.
The third question
Admissibility
50. In that respect, it must be noted that a reference for a preliminary ruling made by a national court may be declared inadmissible only where it is quite obvious that the interpretation of European Union law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑500/10 Belvedere Costruzioni  [2012] ECR, paragraph 16 and the case-law cited).
56. However, it is not for the Court to make a ruling in that respect. Questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see, in particular, Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli [2010] ECR I‑5667, paragraph 27 and the case-law cited).
– Preliminary observations
59. The activities of collecting societies are subject to the provisions of Article 56 TFEU et seq. relating to the freedom to provide services (see, to that effect, Case 22/79 Greenwich Film Production [1979] ECR 3275, paragraph 12, Case 7/82 GVL  v Commission [1983] ECR 483, paragraph 38; and Joined Cases C‑92/92 and C‑326/92 Phil Collins and Others  [1993] ECR I‑5145, paragraph 24).
62. Furthermore, as the Commission rightly points out, it is of little importance, in that regard, whether it is the copyright holder or the user of the protected works which pays for that service. Article 57 TFEU does not require that the service provided be paid for by those who benefit from it (Case 352/85 Bond van Adverteerders and Others  [1988] ECR 2085, paragraph 16).
68. Since such a service is of a cross-border nature, Article 56 TFEU is applicable to it (see, to that effect, Bond van Adverteerders and Others , paragraph 15).
69. Moreover, legislation such as that at issue in the main proceedings, prohibiting, in practice, the provision of such a service, constitutes a restriction on the freedom to provide services (see, to that effect, Football Association Premier League and Others , paragraph 85).
70. That restriction cannot be justified unless it serves overriding reasons in the public interest, is suitable for securing the attainment of the public interest objective which it pursues and does not go beyond what is necessary in order to attain it (see, inter alia, Football Association Premier League and Others , paragraph 93).
71. As OSA, the governments which submitted observations to the Court, and the Commission rightly point out, the protection of intellectual property rights constitutes such an overriding reason in the public interest (see, to that effect, Football Association Premier League and Others , paragraph 94 and the case-law cited).
74. By those agreements, concluded between collecting societies, the societies confer on each other the right to grant, within the territory for which they are responsible, the requisite authorisations for any public performance of protected works of members of the other societies and to subject those authorisations to certain conditions, in conformity with the laws applicable in the territory in question (see, to that effect, Case 395/87 Tournier [1989] ECR 2521, paragraph 17, and Joined Cases 110/88, 241/88 and 242/88 Lucazeau and Others  [1989] ECR 2811, paragraph 11).
75. In that respect, the Court has held that reciprocal representation agreements between the collecting societies are intended, inter alia, to enable those societies to rely, for the protection of their repertoires in another State, on the organisation established by the collecting society operating there, without being obliged to add to that organisation their own network of contracts with users and their own local monitoring arrangements (see, to that effect, Tournier , paragraph 19, and Lucazeau and Others , paragraph 13).
80. As a preliminary, it must be pointed out, in the first place, that a collecting society, such as OSA, is an undertaking to which Article 102 TFEU applies (see, to that effect, Case 127/73 BRT and Société belge des auteurs, compositeurs et éditeurs  [1974] ECR 313, paragraphs 6 and 7, ‘ BRT II ’).
81. In the second place, Article 106(2) TFEU, which contains specific rules which apply to, inter alia, undertakings entrusted with the operation of services of general economic interest, does not preclude the application of Article 102 TFEU to a collecting society such as OSA. Such a collecting society, to which the State has not assigned any task and which manages private interests, even though it is a case of intellectual property rights protected by law, does not fall within the scope of Article 106(2) TFEU (see, to that effect, BRT II , paragraph 23, and GVL  v Commission , paragraph 32).
82. However, legislation such as that at issue in the main proceedings is liable to fall within the scope of Article 106(1) TFEU. That legislation grants exclusive rights to a collecting society such as OSA as regards the management of copyright relating to a certain category of works in the territory of the Member State concerned, thereby preventing other undertakings from exercising the economic activity in question in the same territory (see, to that effect, Case C‑475/99 Ambulanz Glöckner  [2001] ECR I‑8089, paragraph 24).
83. As regards the interpretation of Article 102 TFEU in such a context, it is settled case-law that the mere creation of a dominant position through the grant of exclusive rights within the meaning of Article 106(1) TFEU is not in itself incompatible with Article 102 TFEU. A Member State will be in breach of the prohibitions laid down by those two provisions only if the undertaking in question, merely by exercising the exclusive rights conferred upon it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses (Case C‑437/09 AG2R Prévoyance  [2011] ECR I‑973, paragraph 68 and the case-law cited).
86. In that respect, it must be pointed out that a collecting society, such as OSA, which has a monopoly over the management in the territory of a Member State of copyright relating to a category of protected works, has a dominant position in a substantial part of the internal market within the meaning of Article 102 TFEU (see, to that effect, Case C‑52/07 Kanal 5 and TV 4  [2008] ECR I‑9275, paragraph 22).
87. Where such a collecting society imposes fees for its services which are appreciably higher than those charged in other Member States and where a comparison of the fee levels has been made on a consistent basis, that difference must be regarded as indicative of an abuse of a dominant position within the meaning of Article 102 TFEU. In such a case it is for the collecting society in question to justify the difference by reference to objective dissimilarities between the situation in the Member State concerned and the situation prevailing in all the other Member States (see, to that effect, Tournier , paragraph 38, and Lucazeau and Others , point 25).
88. Likewise, such an abuse might lie in the imposition of a price which is excessive in relation to the economic value of the service provided ( Kanal 5 and TV 4 , paragraph 28).