Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH.
Date: 2017-02-16
17


It should be borne in mind that, in the judgment of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764, paragraphs 47 and 54), the Court held that the distribution of a signal by means of TV sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes a communication to the public within the meaning of Article 3(1) of Directive 2001/29, and that the private nature of hotel rooms by such a hotel does not preclude the communication of a work by those means from constituting a communication to the public within the meaning of Article 3(1) of Directive 2001/29.
18


As regards Directive 2006/115, of which an interpretation is sought, the Court also held, in the judgment of 15 March 2012, Phonographic Performance (Ireland) (C‑162/10, EU:C:2012:141, paragraph 47) that a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal makes a communication to the public for the purposes of Article 8(2) of Directive 2006/115.
19


As the concepts used by those directives must have the same meaning, unless the EU legislature has expressed a different intention (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 188, and of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 33), the provision of a signal by means of television or radio sets installed in hotel rooms must also, as the Advocate General stated in point 16 of his Opinion, constitute a communication to the public of broadcasts from broadcasting organisations within the meaning of Article 8(3) of Directive 2006/115.
21


As regards interpreting the concept of ‘places accessible to the public against payment of an entrance fee’, it is apparent from recital 7 of Directive 2006/115 that it seeks to approximate the legislation of the Member States in such a way as not to conflict, in particular, with the Rome Convention. Accordingly, although that convention does not form part of the legal order of the European Union, concepts appearing in Directive 2006/15 must be interpreted in particular in the light of that convention, in such a way that they are compatible with the equivalent concepts contained in that convention, taking account also of the context in which those concepts are found and the purpose of the relevant provisions of the convention (see, to that effect, judgment of 15 March 2012, SCT, C‑135/10, EU:C:2012:140, paragraphs 53 to 56).
22


In the present case, the scope of the right of communication to the public laid down in Article 8(3) of Directive 2006/115 is equivalent to that of the right provided for in Article 13(d) of the Rome Convention, which, in accordance with the wording of Article 8(3), limits it to ‘places accessible to the public against payment of an entrance fee’ (see, to that effect, judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraphs 94 to 96). The intention of the EU legislature was — as confirmed by the amended proposal for a directive, of 30 April 1992 (COM(92) 159 final, p. 12), which led to the adoption of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), which was repealed and codified by Directive 2006/115 — to follow to a large extent the provisions of the Rome Convention introducing minimum protection in order to achieve uniform minimum protection in the European Union and, by modelling Article 6a(3) of the proposed Directive on Article 13(d) of the Rome Convention, to provide for an exclusive right to communicate television broadcasts to the public under the conditions set out in that convention.
25


Therefore, although the distribution of a signal by means of TV and radio sets installed in hotel rooms constitutes an additional service which has an influence on the hotel’s standing and, therefore, on the price of rooms, as pointed out by the Court in its judgments of 7 December 2006, SGAE (C‑306/05,EU:C:2006:764, paragraph 44) and of 15 March 2012, Phonographic Performance (Ireland) (C‑162/10, EU:C:2012:141, paragraph 44), in the context of the examination of the existence of an act of communication to the public within the meaning of Article 3(1) of Directive 2001/29 and of Article 8(2) of Directive 2006/115, it cannot be considered that that additional service is offered in a place accessible to the public against payment of an entrance fee within the meaning of Article 8(3) of that directive.