1 This request for a preliminary ruling concerns the interpretation of Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28) and of the second subparagraph of Article 16(2) of Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ 2014 L 84, p. 72), read in conjunction with Articles 17 and 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between the Uniunea Producătorilor de Fonograme din România (UPFR) (Union of Phonogram Producers of Romania (UPFR)), an organisation for the collective management of rights related to copyright of phonogram producers, and DADA Music SRL, a local radio station operator, regarding the payment by DADA Music of minimum flat-rate remuneration.
3 The Berne Convention for the Protection of Literary and Artistic Works signed in Berne on 9 September 1886 (Paris Act of 24 July 1971), in the version resulting from the amendment of 28 September 1979 (‘the Berne Convention’), signed by all the Member States, provides, in Article 11bis(1) and (2): ‘(1) Authors of literary and artistic works shall enjoy the exclusive right of authorising: (i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images; … (2) It shall be a matter for legislation in the countries of the Union [established by this convention] to determine the conditions under which the rights [of authors of literary and artistic works] may be exercised … They shall not in any circumstances be prejudicial to the … rights of the author … to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.’
4 The World Intellectual Property Organization (WIPO) adopted, on 20 December 1996, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (‘the WPPT’). Those treaties were approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (OJ 2000 L 89, p. 6) and entered into force, in so far as concerns the European Union, on 14 March 2010.
5 Article 15 of the WPPT, headed ‘Right to Remuneration for Broadcasting and Communication to the Public’, provides, in paragraphs 1 and 2: ‘(1) Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public. (2) Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration.’
6 Recitals 5, 7 and 12 of Directive 2006/115 state: ‘(5) The creative and artistic work of authors and performers necessitates an adequate income as a basis for further creative and artistic work, and the investments required particularly for the production of phonograms and films are especially high and risky. The possibility of securing that income and recouping that investment can be effectively guaranteed only through adequate legal protection of the rightholders concerned. … (7) The legislation of the Member States should be approximated in such a way as not to conflict with the international conventions on which the copyright and related rights laws of many Member States are based. … (12) It is necessary to introduce arrangements ensuring that an unwaivable equitable remuneration is obtained by authors and performers who must remain able to entrust the administration of this right to collecting societies representing them.’
7 Article 8 of that directive, entitled ‘Broadcasting and communication to the public’, provides, in paragraph 2: ‘Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. Member States may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.’
8 Recitals 2 and 31 of Directive 2014/26 state: ‘(2) … It is normally for the rightholder to choose between the individual or collective management of his rights, unless Member States provide otherwise, in compliance with Union law and the international obligations of the Union and its Member States. … … ‘(31) … It is appropriate to require that the licence fee or remuneration determined by collective management organisations be reasonable in relation to, inter alia, the economic value of the use of the rights in a particular context. …’
9 Article 12 of that directive, headed ‘Subject matter’, provides, in paragraph 1: ‘Member States shall ensure that where a rightholder authorises a collective management organisation to manage his rights, the collective management organisation is required to provide the rightholder with information on management fees and other deductions from the rights revenue and from any income arising from the investment of rights revenue, before obtaining his consent to its managing his rights.’
10 Article 16 of that directive, entitled ‘Licensing’, provides, in the second subparagraph of paragraph 2: ‘Rightholders shall receive appropriate remuneration for the use of their rights. Tariffs for exclusive rights and rights to remuneration shall be reasonable in relation to, inter alia, the economic value of the use of the rights in trade, taking into account the nature and scope of the use of the work and other subject matter, as well as in relation to the economic value of the service provided by the collective management organisation. Collective management organisations shall inform the user concerned of the criteria used for the setting of those tariffs.’
11 Article 17 of the directive, entitled ‘Users’ obligations’, reads as follows: ‘Member States shall adopt provisions to ensure that users provide a collective management organisation, within an agreed or pre-established time and in an agreed or pre-established format, with such relevant information at their disposal on the use of the rights represented by the collective management organisation as is necessary for the collection of rights revenue and for the distribution and payment of amounts due to rightholders. …’
12 Article 112 of Legea nr. 8/1996 privind dreptul de autor și drepturile conexe (Law No 8/1996 on copyright and related rights) of 14 March 1996 (Monitorul Oficial al României, Part I, No 60, of 26 March 1996, republished in the Monitorul Oficial al României, Part I, No 489, of 14 June 2018; ‘the Law on copyright’) provides: ‘(1) Performers and producers of phonograms shall be entitled to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes or for their reproduction by broadcasting or any means of communication to the public. (2) The amount of that remuneration shall be determined by methodologies, in accordance with the procedure laid down in Articles 163 to 165. …’
13 Article 145 of the Law on copyright provides: ‘Collective management shall be compulsory in order to exercise the following rights: … (c) the right of broadcasting musical works; (d) the right to a single equitable remuneration for performers and phonogram producers for the communication to the public and broadcasting of phonograms published for commercial purposes or of reproductions thereof; …’
14 Article 164 of that law reads as follows: ‘(1) The methodology shall be negotiated by the collective management organisations with the representatives referred to in Article 163(3)(b) and (c), in accordance with the following main criteria: (a) the category of rightholders, types of works and other protected subject matter, and the field in which the negotiation takes place; (b) the user categories represented in negotiations by associations or by other users empowered to negotiate; (c) the repertoire managed by the collective management organisation on behalf of its own members or members of other similar foreign organisations under reciprocal agreements; (d) the proportion in which the repertoire managed by a collective management organisation is used; (e) the proportion of uses in respect of which the user has fulfilled its payment obligations by contracts concluded directly with rightholders; (f) revenue received by the users of the activity using the repertoire, in respect of which use methodologies are negotiated; (g) European practice regarding the results of negotiations between users and collective management organisations. (2) Collective management organisations may, in negotiations, request from the same category of users either flat-rate remuneration as a percentage of revenue received by each user of the activity in respect of which the repertoire is used or, if there is no revenue, expenditure incurred in the context of its use. As regards broadcasting, the collective management organisations may request only remuneration as a percentage - distinguished, in a directly proportionate manner to the percentage of the use by each user, television broadcasting organisation or radio broadcasting organisation - of the repertoire managed collectively in the context of that activity. (3) The remuneration provided for in paragraph 2 shall be reasonable in relation to the economic value and the share of the use of the rights in question, taking into account the nature and scope of the use of the work and other protected subject matter, as well as in relation to the economic value of the service provided by the collective management organisation. The collective management organisations and the users shall give reasons for how those remunerations are set.’
15 Article 166 of that law provides as follows: ‘(1) The collective management organisations, users or user associations referred to in Article 163(3)(b) and (c) may submit a fresh application to open negotiation procedures for tariffs and methodologies only three years after the final version thereof has been published in the Monitorul Oficial al României, Part I. (2) In the case of the negotiations provided for in Article 114(4), any of the parties may submit a fresh application to open negotiation procedures for tariffs and methodologies only three years after the final version thereof has been published in the Monitorul Oficial al României, Part I. (3) Until publication of the new methodologies, the former methodologies remain valid.’
16 Article II of Legea nr. 74/2018 pentru modificarea si completarea legii nr. 8/1996 privind dreptul de autor și drepturile conexe (Law No 74/2018 amending and supplementing Law No 8/1996 on copyright and related rights) of 22 March 2018 (Monitorul Oficial al României, Part I, No 268 of 27 March 2018), in force since 30 March 2018, provides, in paragraphs 2 and 3: ‘(2) The methodologies provided for in Article 131 of the [Law on copyright], as amended and supplemented, shall remain in force until the period in respect of which they were concluded expires. (3) The provisions of the methodologies drawn up in accordance with Articles 131 and 1311 of the [Law on copyright], as amended and supplemented, providing for fixed or minimum amounts/remuneration applicable to broadcasting, contrary to Article 1311(2), as amended by the present law, no longer apply after the period of 90 days from the publication of the present law in the Monitorul Oficial al României, Part I.’
17 The Metodologia privind remunerația datorată artiștilor interpreți sau executanți și producătorilor de fonograme pentru radiodifuzarea fonogramelor publicate în scop comercial ori a reproducerilor acestora de către organismele de radiodifuziune (methodology for the remuneration of performers and phonogram producers for the broadcasting of phonograms published for commercial purposes or reproductions thereof by broadcasting organisations; ‘the remuneration methodology’) provides, in points 4 to 6: ‘4. Broadcasting organisations, referred to as “users” for the purposes of the present methodology, are required, every three months, to pay the collective management organisations designated by [the Oficiul Român pentru Drepturile de Autor (Romanian Copyright Office)] as collectors for performers and phonogram producers remuneration for related rights in respect of the use of commercial phonograms or reproductions thereof, established by applying a percentage according to the table below to the basis of calculation referred to in point 5 of the methodology, for each radio station owned. Share of the use of commercial phonograms in programmes Performers and phonogram producers Up to 35% 1.8% From 35% up to 65% 2.4% Over 65% 3% Broadcasting organisations are required, every three months, to pay the collective management organisations designated by the [Romanian Copyright Office] as collectors for performers and phonogram producers remuneration for related rights in respect of the use of phonograms published for commercial purposes or reproductions thereof, calculated by applying to the total gross revenue per month from broadcasting activity a percentage of 3% in the event of use of phonograms for 100% of the total broadcasting time of programmes. In the event of lesser use, the percentage of 3% shall be reduced in a directly proportionate manner according to the share of use of the phonograms of the total broadcasting time of programmes. … 5. The basis of calculation to which the percentages set out in point 3 apply is the total gross revenue per month, after deducting value added tax, received by users from broadcasting activity, including but not limited to income from advertising, trade, subscriptions, announcements and information, telephone calls and SMS subject to additional charges, sponsorships, broadcast competitions and games, rental of broadcasting spaces, other financial contributions, reception authorisations, revenue from broadcasting on demand, revenue from associations or other activities related to broadcasting. Revenue from third party companies, inter alia, companies producing and purchasing advertising, are also included in the basis of calculation, in so far as they are received for the user’s broadcasting activities corresponding to the phonogram or phonograms published for commercial purposes, broadcast and to the extent that there is an unfair transfer contrary to honest practices in commercial relationships specific to the field in question. In the absence of revenue, the basis of calculation is made up of all the expenditure incurred by the user for broadcasting activity (such as staff costs, fees for services provided by third parties, purchases of any kind, etc.) during the three-month period in respect of which remuneration is payable. 6. The amounts resulting from applying the percentages to the basis of calculation shall not be less than the equivalent of EUR 500 per three-month period in [Romanian lei (RON)], calculated according to the exchange rate of the RNB [Banca Națională a României (National Bank of Romania)] at the date on which the payment falls due, representing the minimum remuneration payable by users for each local radio station owned, or of EUR 1000 per three-month period, representing the minimum remuneration payable by the users for each local radio station owned.’
18 On 20 October 2011, the UPFR, a collective management organisation for the related rights of phonogram producers, and DADA Music entered into a non-exclusive licence agreement for the broadcasting of commercial phonograms. Under that contract, DADA Music acquired the right to broadcast such phonograms through its radio station, taking on the corresponding obligation to pay the remuneration provided for under the methodology by way of which that remuneration is calculated.
19 The contract provided that, depending on the share of the use of the phonograms in the radio programmes, DADA Music was liable to pay the UPFR remuneration established as a percentage, calculated in relation to its total revenue, or, in the absence of revenue, in relation to the total costs incurred for the broadcasting activity.
20 According to that contract, the remuneration thus payable could not be lower than a flat-rate amount corresponding to the equivalent in Romanian lei of EUR 250 per three-month period as the minimum remuneration payable by users for each local radio station owned, or EUR 500 per three-month period as the minimum flat-rate remuneration payable by users for each local radio station owned, in accordance with the remuneration methodology.
21 Following the entry into force of Law No 74/2018, which repealed, with effect from 90 days after its publication, the provisions relating to the minimum remuneration applicable to broadcasting, DADA Music refused to continue to pay the flat-rate remuneration, arguing that that law was immediately applicable and that it was required to pay remuneration only on the basis of revenue actually received.
22 The UPFR contended that the minimum flat-rate remuneration, calculated according to the remuneration methodology, remained payable until a new methodology was adopted.
23 On 24 June 2019, the UPFR brought an action before the Tribunalul București (Regional Court, Bucharest, Romania) seeking an order for payment by DADA Music of the amounts payable under the licence agreement, in accordance with the remuneration methodology.
24 On 28 January 2022, that court upheld that action in part and ordered DADA Music to pay the UPFR the amount of RON 16.13 (approximately EUR 3) and the amount of RON 70.68 (approximately EUR 14) in default interest. In essence, the court held that Article 164(2) of the Law on copyright and Article II of Law No 74/2018 were applicable to the dispute in the main proceedings. Having regard to the fact that the provisions relating to minimum flat-rate remuneration were no longer in force during the period at issue, it considered that, in respect of that period, solely remuneration as a percentage, relating to revenue actually received, was payable, to the exclusion of any minimum flat-rate remuneration.
25 The UPFR and DADA Music appealed against that judgment before the Curtea de Apel București (Court of Appeal, Bucharest, Romania), the referring court.
26 In support of its appeal, the UPFR submitted, in essence, that Article II of Law No 74/2018 was applicable only in the context of adopting a new methodology. Until such a methodology was adopted, the remuneration methodology remained fully applicable. According to the UPFR, if those provisions had to be interpreted as directly applicable in the present case, they would be contrary to Article 8(2) of Directive 2006/115 and Article 16(2) of Directive 2014/26.
27 The referring court states that it is uncertain in the present case whether Article 8(2) of Directive 2006/115 and the second subparagraph of Article 16(2) of Directive 2014/26, read in conjunction with Articles 17 and 52 of the Charter, preclude national legislation which does not ensure minimum flat-rate remuneration for rightholders represented by collective management organisations, irrespective of revenue received or expenditure incurred by radio and television broadcasting organisations.
28 In that connection, that court notes, first, that nothing in the provisions referred to above appears to justify the interpretation that minimum flat-rate remuneration must be provided for.
29 Second, that court states that Article II of Law No 74/2018 repeals, with immediate effect to the benefit of broadcasters, a component of the applicable remuneration system, without amending the criteria for calculating remuneration and without laying down a maximum period for concluding fresh agreements in order to determine the amount of equitable remuneration, as the existing situation has been amended in favour of broadcasters, without providing for a system ensuring that the remuneration payable to phonogram producers is reasonable.
30 Third, regarding the equitable and reasonable nature of the remuneration, the referring court is uncertain as to the criteria under EU law which may be used for such an assessment. More specifically, it seeks to ascertain whether, should it find that the remuneration payable under the criteria laid down in the legislation is derisory, it may or must apply alternative criteria in order to ensure that rightholders receive proper remuneration.
31 In those circumstances, the Curtea de Apel București (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘[1.] Must Article 8(2) of Directive [2006/115] and the second [subparagraph] of Article 16(2) of Directive [2014/26], read in conjunction with Articles 17 and 52 of the [Charter], be interpreted as meaning that they … preclude national legislation which does not guarantee a minimum (flat-rate) equitable remuneration for rightholders (phonogram producers), represented by collective management organisations, irrespective of the revenues obtained or the costs incurred by broadcasting organisations? 2. If the first question is answered in the negative, do those articles preclude national legislation which abolishes, with immediate effect, the minimum (flat-rate) remuneration determined on the basis of a methodology previously negotiated between the collective management organisation and the users, without altering the criteria for calculating remuneration and without providing for a maximum period for negotiating new agreements (methodologies) for quantifying equitable remuneration? 3. If the first two questions are answered in the negative, is the national court entitled and, if so, required to ascertain whether the remuneration percentages calculated in relation to the actual revenues declared by broadcasting organisations are equitable and reasonable for rightholders, on the one hand, and users, on the other, or, on the contrary, whether they are manifestly derisory or, as the case may be, manifestly excessive, and what are the criteria that may be used for the purposes of such an assessment? 4. If the third question is answered in the affirmative, if the national court finds that the remuneration due under the methodology amended by the new national legislation is derisory, is that court entitled and/or required to apply criteria other than that of declared revenue - such as, for example, the determination of remuneration on the basis of the costs incurred by broadcasters in respect of the broadcasting activity, the remuneration paid by similar broadcasters, or other similar criteria - in order to ensure that rightholders receive appropriate remuneration, without prejudice to the legitimate interests of users, that is to say, without being derisory, but also without being unduly burdensome for broadcasting organisations?’
32 By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 8(2) of Directive 2006/115, the second subparagraph of Article 16(2) of Directive 2014/26 and Article 17(2) of the Charter, read in conjunction with Article 52(1) thereof, must be interpreted as precluding national legislation which does not guarantee minimum flat-rate remuneration to phonogram producers for the broadcasting of phonograms published for commercial purposes and which repeals, with effect from 90 days after its publication, the provisions relating to minimum flat-rate remuneration applicable to broadcasting established by a previously applicable methodology, without, however, altering the criteria for calculating remuneration and without providing for a maximum period for adopting a new methodology for quantifying the remuneration.
33 As a preliminary point, the Court notes that neither Article 8(2) of Directive 2006/115 nor the second subparagraph of Article 16(2) of Directive 2014/26 refer to the law of the Member States regarding the meaning to be given to the concepts set out therein.
34 In that regard, it must be borne in mind that it follows from the need for a uniform application of EU law and the principle of equality that the terms of a provision of EU 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 European Union; that interpretation must take into account the wording of that provision, its context and the objectives pursued by the rules of which it forms part (judgments of 18 January 1984, Ekro, 327/82, EU:C:1984:11, paragraph 11, and of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 46 and the case-law cited).
35 In the first place, regarding the wording of the provisions in question, Article 8(2) of Directive 2006/115 provides that Member States are required to provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. In the absence of agreement between the performers and phonogram producers, the Member States may lay down the conditions as to the sharing of this remuneration between them.
36 According to the wording of the second subparagraph of Article 16(2), rightholders are to receive appropriate remuneration for the use of their rights. Tariffs for exclusive rights and rights to remuneration must be reasonable in relation to, inter alia, the economic value of the use of the rights in trade, taking into account the nature and scope of the use of the work and other subject matter, as well as in relation to the economic value of the service provided by the collective management organisation. Collective management organisations are to inform the user concerned of the criteria used for the setting of those tariffs.
37 Accordingly, it is not apparent from the wording of Article 8(2) of Directive 2006/115 or from that of the second subparagraph of Article 16(2) of Directive 2014/26 that Member States should guarantee minimum flat-rate remuneration to rightholders for the broadcasting of phonograms published for commercial purposes, as those provisions provide that remuneration must be ‘equitable’ or ‘appropriate’. The terms ‘minimum flat-rate remuneration’ mean, according to their usual meaning in ordinary language, remuneration that is liable not to have any connection with the economic value of the remunerated service, with no consideration given to whether it is equitable or appropriate.
38 In that connection, although, admittedly, Article 8(2) of Directive 2005/115 refers to the concept of ‘equitable remuneration’ and the second subparagraph of Article 16(2) of Directive 2014/26 contains the terms ‘appropriate remuneration’, it is clear that the purpose of both those provisions is to ensure the payment to rightholders of remuneration that is connected to the economic value of the service provided. Moreover, the Court has held that the concepts used by Directives 2006/115 and 2014/26 must, given the requirements of unity and coherence of the EU legal order, have the same meaning, unless the EU legislature has, in a specific legislative context, expressed a different intention (see, to that effect, judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 28); as a result, the concepts of ‘equitable remuneration’ and ‘appropriate remuneration’ referred to in those directives must be given a uniform interpretation.
39 In the second place, regarding the context of Article 8(2) of Directive 2006/115 and the second subparagraph of Article 16(2) of Directive 2014/26, it must be borne in mind that the provisions of those directives must be interpreted in the light of international law and in particular of the treaty law which those instruments are specifically intended to implement, as recalled in recital 7 of the first directive and, in essence, recital 2 of Directive 2014/26 (see, to that effect, judgment of 18 November 2020, Atresmedia Corporación de Medios de Comunicación, C‑147/19, EU:C:2020:935, paragraph 34).
40 In that context, Article 15(1) of the WPPT provides specifically that phonogram producers enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public. The Court has held that when the WPPT entered into force for the European Union, that is to say, on 14 March 2010, that obligation had already been transposed into EU law by Article 8(2) of Directive 2006/115 (judgment of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 63).
41 Moreover, Article 8(2) of Directive 2006/115 and the second subparagraph of Article 16(2) of Directive 2014/26 correspond, in essence, to Article 11bis(2) of the Berne Convention, which covers specifically, in paragraph 1 of that article, the broadcasting of literary and artistic works. Indeed, Article 11bis(2) of the convention provides, in essence, that authors of literary and artistic works have the right to obtain ‘equitable remuneration’ when those works are broadcast. When the Court interprets that concept, within the meaning of those provisions of EU law, it does so in conformity with that treaty provision, pursuant to the Court’s consistent case-law (see, to that effect, judgment of 16 March 2017, AKM, C‑138/16, EU:C:2017:218, paragraph 21 and the case-law cited).
42 In that regard, it follows from the ‘Guide to the Copyright and Related Rights Treaties Administered by WIPO’, an interpretative document drawn up by WIPO which, without being legally binding, nevertheless assists in interpreting the Berne Convention (see, to that effect, judgment of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 201 and the case-law cited), remuneration may be regarded as equitable only if it corresponds more or less to the payment that the author might be able to agree upon through negotiations in the absence of compulsory licences.
43 In the third place, regarding the objectives pursued by Directive 2006/115 and Directive 2014/26, recitals 5 and 12 of Directive 2006/115 specify, in essence, that adequate legal protection of rightholders must guarantee that those rightholders have the possibility of receiving unwaivable equitable remuneration and of recouping investment relating to, inter alia, the production of phonograms and films. Moreover, it is apparent from recital 31 of Directive 2014/26 that the remuneration of rightholders, when determined by collective management organisations, must be reasonable in relation to, inter alia, the economic value of the use of the rights in a particular context.
44 In the light of those objectives, the concepts of ‘equitable remuneration’ or ‘appropriate remuneration’ must be viewed as enabling a proper balance to be achieved between the interests of phonogram 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 (see, by analogy, judgment of 6 February 2003, SENA, C‑245/00, EU:C:2003:68, paragraph 36).
45 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 (judgment of 6 February 2003, SENA, C‑245/00, EU:C:2003:68, paragraph 37).
46 It follows from the Court’s case-law that it is not, however, for the Court to act in the place of the Member States, which have discretion to lay down the criteria for determining what constitutes equitable remuneration, or to set general predetermined limits on the fixing of such criteria. By contrast, it can provide the national court with the information it needs to assess whether the national criteria used for assessing the remuneration of phonogram producers are such as to ensure that they receive equitable remuneration in a manner that is consistent with EU law (see, to that effect, judgment of 6 February 2003, SENA, C‑245/00, EU:C:2003:68, paragraph 40).
47 Accordingly, the Court has held that Article 8(2) of Directive 2006/115 does not preclude a model for calculating what constitutes equitable remuneration for performers and phonogram producers, provided, inter alia, that it does not contravene any principle of EU law (judgment of 6 February 2003, SENA, C‑245/00, EU:C:2003:68, paragraph 46).
48 As a result, criteria laying down equitable or appropriate remuneration must be defined in compliance with EU law. More specifically, Member States may not, so doing, disregard the Charter.
49 In the first and second questions referred for a preliminary ruling, the referring court expresses clear uncertainties as to the compatibility of the rules for determining the remuneration of rightholders laid down in Law No 74/2018 - which repealed, with effect from 90 days after its publication, the provisions relating to minimum flat-rate remuneration applicable to broadcasting - with Article 17(2) of the Charter. Nevertheless, as regards the applicability of Article 17 of the Charter, it should be recalled that, under Article 51(1) thereof, the provisions of the Charter are addressed to the Member States only when they are implementing EU law.
50 In order to determine whether a national measure involves ‘implementing Union law’ within the meaning of Article 51(1) of the Charter, it is necessary to determine, inter alia, whether the national legislation at issue in the main proceedings is intended to implement a provision of EU law (judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 27 and the case-law cited).
51 In the present case, where rightholders and users do not come to an agreement as to how the remuneration of those rightholders is to be determined, they are set by Law No 74/2018 according to criteria that Romania has defined by exercising its discretion in that regard. The order for reference appears to state that the provisions of that law implement EU law, Article 8(2) of Directive 2006/115 and the second subparagraph of Article 16(2) of Directive 2014/26 in particular, which it remains, however, for the referring court to confirm.
52 In those circumstances, the Member State would be responsible for complying with the Charter, Article 17 thereof in particular, when implementing those provisions.
53 In that connection, the Court notes that Article 17 of the Charter, which draws on Article 1 of the First Additional Protocol to the European Convention on Human Rights signed in Rome on 4 November 1950, provides, in paragraph 1, that everyone has the right to own his or her lawfully acquired possessions and that no one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The protection of intellectual property is mentioned expressly in paragraph 2 of that article on account of its importance, and the guarantees laid down in paragraph 1 apply, where relevant, to intellectual property.
54 According to case-law, the right to equitable remuneration constitutes, in the European Union, a right related to copyright. It is, accordingly, an integral part of the protection of intellectual property enshrined in Article 17(2) of the Charter (judgment of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 85 and the case-law cited).
55 As Article 8(2) of Directive 2006/115 and the second subparagraph of Article 16(2) of Directive 2014/26 guarantee the right to remuneration of rightholders for use of their rights, national legislation such at that in the main proceedings which repealed, with effect from 90 days after its publication, the provisions relating to minimum flat-rate remuneration applicable to broadcasting is therefore liable to constitute a limitation on the protection of intellectual property rights enshrined in Article 17(2) of the Charter.
56 That said, it does not follow from that provision or from the Court’s case-law that the right to intellectual property enshrined in that provision is inviolable and must for that reason be protected as an absolute right (see, to that effect, judgment of 26 April 2022, Poland v Parliament and Council, C‑401/19, EU:C:2022:297, paragraph 92 and the case-law cited).
57 In that regard, Article 52(1) of the Charter allows limitations to be imposed on the exercise of rights such as those enshrined in the Charter, as long as the limitations are provided for by law, respect the essence of those rights and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgments of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 50, and of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 51 and the case-law cited).
58 While it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret national legislation, to determine whether the requirements laid down therein meet the conditions provided for by EU law, the Court, in the context of a reference for a preliminary ruling, may provide the referring court with guidance, on the basis of the documents relating to the main proceedings and the written and oral observations which have been submitted to it, in order to enable that court to resolve the dispute before it (judgment of 4 October 2024, Tecno*37, C‑242/23, EU:C:2024:831, paragraph 67 and the case-law cited).
59 First, it is common ground that the limitations on the exercise of the rights referred to in Article 17(2) of the Charter which the regime in the main proceedings entails are provided for by Law No 74/2018.
60 Second, in so far as national legislation, which does not guarantee minimum flat-rate remuneration for phonogram producers, in so far as it repealed, with effect from 90 days after its publication, the provisions relating to that remuneration applicable to broadcasting, does not lead to a deprivation of property, it cannot undermine the very substance of the right to property (see, by analogy, judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 53 and the case-law cited). It is apparent from the case file before the Court that the rules laid down in the legislation at issue in the main proceedings for determining the remuneration of rightholders resulted in the payment to those rightholders of remuneration proportionate to the revenue actually received by local radio stations.
61 Third, it is apparent from the file that the objective of Law No 74/2018 is to establish a system taking account of the economic situation of local radio stations which, on account of their restricted listening public and often limited revenue, are not in a position to bear excessive costs in relation to their revenue. Subject to verifications which it is for the referring court to carry out, such an objective appears to be legitimate where it is intended to ensure the economic viability of those stations.
62 Fourth, as regards the proportionate nature of the limitation on the right enshrined in Article 17(2) of the Charter in relation to the objective pursued by the legislation at issue in the main proceedings, it seems, first of all, subject to verification by the referring court, that the determination of remuneration payable to rightholders on the basis of broadcaster revenue alone is capable of achieving the objective pursued by the legislation at issue in the main proceedings, since it makes it possible to take into consideration the economic capacity of local stations.
63 Next, regarding whether the measure laid down in that legislation is necessary, it is for the referring court to verify, taking into consideration the discretion afforded to Romania recalled in paragraph 51 of the present judgment, whether it is obvious whether there are less restrictive measures making it possible to achieve the objective pursued by that legislation.
64 Last, regarding the proportionality stricto sensu of that legislation, in order to provide the referring court with information which will allow it to carry out such an assessment, the Court notes that a determination of the equitable or appropriate remuneration that must be paid to rightholders must take into consideration the economic value of the use of works in broadcasting. It is only under that condition that a fair balance between, on the one hand, the interests of holders of copyright and related rights in the protection of their right to intellectual property, enshrined in Article 17(2) of the Charter and, on the other hand, the protection of the interests of phonogram users may be guaranteed (see, by analogy, judgment of 29 July 2019, Pelham and Others, C‑476/17, EU:C:2019:624, paragraph 32 and the case-law cited).
65 More specifically, remuneration the amount of which is well above that value cannot be regarded as being equitable or appropriate in the light of the principle of proportionality.
66 Having regard to the foregoing considerations, the answer to the first and second questions is that Article 8(2) of Directive 2006/115, the second subparagraph of Article 16(2) of Directive 2014/26 and Article 17(2) of the Charter, read in conjunction with Article 52(1) thereof, must be interpreted as not precluding national legislation which does not guarantee minimum flat-rate remuneration to phonogram producers for the broadcasting of phonograms published for commercial purposes and which repeals, with effect from 90 days after its publication, the provisions relating to minimum flat-rate remuneration applicable to broadcasting established by a previously applicable methodology, without, however, altering the criteria for calculating remuneration and without providing for a maximum period for adopting a new methodology for quantifying the remuneration, provided that that legislation guarantees that the remuneration paid to rightholders is equitable or appropriate and that it complies with the principle of proportionality.
67 DADA Music submits that the third and fourth questions are inadmissible on the ground that those questions are unrelated to the outcome of the dispute in the main proceedings. The UPFR did not ask the national court to verify whether remuneration as a percentage calculated according to the actual revenue declared by radio and television broadcasting organisations are equitable and reasonable.
68 According to the Court’s settled case-law, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgments of 20 June 2013, Impacto Azul, C‑186/12, EU:C:2013:412, paragraph 26, and of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C‑184/20, EU:C:2022:601, paragraph 47 and the case-law cited).
69 In that regard, it should be recalled that, in the context of the proceedings, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation 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 (judgment of 3 June 2021, BalevBio, C‑76/20, EU:C:2021:441, paragraph 46 and the case-law cited).
70 It is also settled case-law that the need to provide an interpretation of EU law which will be of use to the referring court requires that court to define the factual and legislative context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of EU law and considers it necessary to refer a question to the Court for a preliminary ruling (judgment of 1 August 2022, Roma Multiservizi and Rekeep, C‑332/20, EU:C:2022:610, paragraph 43 and the case-law cited).
71 In the case at hand, the referring court has set out, in a sufficiently clear manner, the reasons why it considers an answer to the third and fourth questions referred for a preliminary ruling to be necessary for it to give a ruling on the dispute in the main proceedings. More specifically, as observed in paragraph 30 of the present judgment, that court stated that it was uncertain as to the criteria which may be used in order to assess whether the remuneration payable to rightholders is equitable and reasonable and as to whether, should it find that the remuneration payable according to the criteria set tout in the legislation is derisory, it could or should apply alternative criteria in order to ensure that rightholders receive proper remuneration.
72 It follows that the third and fourth questions are admissible.
73 By its third and fourth questions, which should be examined together, the referring court asks, in essence, whether and under what conditions it must verify whether the amount of the remuneration paid to rightholders, calculated according to the rules defined by national legislation, guarantees a proper balance between the interests of rightholders and those of phonogram users and, if so, whether, in a dispute between individuals, it can apply the provisions of Directives 2006/115 and 2014/26 directly in order to exclude national legislation which does not guarantee such a balance.
74 In the light of the considerations set out in paragraphs 45 and 46 of the present judgment, it is, accordingly, for the national court before which a dispute has been brought regarding the equitable or appropriate nature of remuneration payable to rightholders to carry out verifications in that connection, having regard, inter alia, as is apparent from the second subparagraph of Article 16(2) of Directive 2014/26, to the economic value of the use of the rights in trade, taking into account the nature and scope of the use of the work and other subject matter, as well as in relation to the economic value of the service provided by the management organisation.
75 In that context, it is, in particular, for the national court to take into consideration the specific nature of copyright and to seek a proper balance between the interests of rightholders in receiving remuneration for the use of their rights and that of users of phonograms in being able to use those works and other subject matter in question under reasonable conditions (see, by analogy, judgment of 25 November 2020, SABAM, C‑372/19, EU:C:2020:959, paragraph 30 and the case-law cited).
76 In that regard, the principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States and requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 25 and the case-law cited).
77 That principle requires, inter alia, national courts, in order to ensure the effectiveness of all provisions of EU law, to interpret, to the greatest extent possible, their national law in conformity with EU law and to afford individuals the possibility of obtaining redress where their rights have been impaired by a breach of EU law attributable to a Member State (judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 26 and the case-law cited).
78 More specifically, the Court has repeatedly held that a national court, when hearing a dispute which is exclusively between private individuals, is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, 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 that directive (judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 27 and the case-law cited).
79 However, the principle that national law must be interpreted in conformity with EU 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 a contra legem interpretation of national law (judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 28 and the case-law cited).
80 In addition, it is also in the light of the primacy principle that, where the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law is unable to interpret national legislation in accordance with the requirements of EU law, that national court is required to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, to that effect, judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 30 and the case-law cited).
81 That said, account should also be taken of the other essential characteristics of EU law and, in particular, of the nature and legal effects of directives (judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 31 and the case-law cited).
82 Thus, a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against that individual before a national court. In accordance with the third paragraph of Article 288 TFEU, the binding nature of a directive, which constitutes the basis for the possibility of relying on it, exists only in relation to ‘each Member State to which it is addressed’; the European Union has the power to enact, in a general and abstract manner, obligations for individuals with immediate effect only where it is empowered to adopt regulations. Therefore, even a clear, precise and unconditional provision of a directive does not allow a national court to disapply a provision of its national law which conflicts with it if, were that court to do so, an additional obligation would be imposed on an individual (judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 32 and the case-law cited).
83 Accordingly, a national court is not required, solely on the basis of EU law, to disapply a provision of its national law which is contrary to a provision of EU law if the latter provision does not have direct effect, without prejudice, however, to the possibility, for that court, or for any competent national administrative authority, to disapply, on the basis of domestic law, any provision of national law which is contrary to a provision of EU law that does not have such effect (judgment of 18 January 2022, Thelen Technopark Berlin, C‑261/20, EU:C:2022:33, paragraph 33 and the case-law cited).
84 Having regard to the foregoing considerations, the answer to the third and fourth questions is that it is for the national court before which a dispute has been brought regarding the equitable or appropriate nature of remuneration payable to rightholders for the broadcasting of phonograms published for commercial purposes, calculated according to the rules defined by national law, to verify whether that remuneration is equitable or appropriate within the meaning of Article 8(2) of Directive 2006/115 and the second subparagraph of Article 16(2) of Directive 2014/26, that is, that it guarantees a balance between the interests of rightholders and those of the users of those phonograms. If the application of that legislation does not allow for such remuneration to be set, the provisions of those directives cannot be relied on to exclude that legislation, unless domestic law provides otherwise.
85 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.