Case C‑351/12

OSA — Ochranný svaz autorský pro práva k dílům hudebním o.s.

v

Léčebné lázně Mariánské Lázně a.s.

(Request for a preliminary ruling from the Krajský soud v Plzni)

‛Directive 2001/29/EC — Copyright and related rights in the information society — Definition of ‘communication to the public’ — Transmission of works in a spa establishment — Direct effect of the provisions of the directive — Articles 56 TFEU and 102 TFEU — Directive 2006/123/EC — Freedom to provide services — Competition — Exclusive right of collective management of copyright’

Summary — Judgment of the Court (Fourth Chamber), 27 February 2014

1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Communication to the public — Meaning — Intentional distribution by a spa establishment of a signal by means of television or radio sets in the bedrooms of the establishment’s patients — Included

   (European Parliament and Council Directive 2001/29, Art. 3(1))

2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Article 3(1) — Not possible to rely on that provision against an individual — Obligations of national courts — Obligation to interpret national law in conformity with EU law — Limits — Observance of general principles of law — Interpretation of national law contra legem

   (European Parliament and Council Directive 2001/29 l, Art. 3(1))

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the subject matter of the case in the main proceedings

   (Art. 267 TFEU)

4. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Necessity of a question referred and relevance of the questions raised — Assessment by the national court

   (Art. 267 TFEU)

5. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Additional derogations from the freedom to provide services — Scope — Service provided by a collecting society to a user of protected works — Included — Inapplicability of Article 16 of that directive

   (European Parliament and Council Directive 2006/123, Arts 16, 17(11))

6. Freedom to provide services — Restrictions — National legislation which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single collecting society — Justification by reasons in the public interest — Protection of intellectual property rights — Lawfulness

   (Art. 56 TFEU))

7. Competition — Public enterprises and enterprises entrusted with special or exclusive right by the Member States — Creation of a dominant position — Not in itself incompatible with Article 102 TFEU

   (Arts 102 TFEU and 106(1) TFEU)

8. Competition — Dominant position — Collecting society enjoying a legal monopoly — Evidence of abuse — Imposition of fees which are appreciably higher than those charged in other Member States — Imposition of prices which are excessive in relation to the economic value of the service provided — To be determined by the national court

   (Arts 102 TFEU and 106(1) TFEU)

1.  Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding legislation of a Member State which excludes the right of authors to authorise or prohibit the communication of their works, by a spa establishment which is a business, through the intentional distribution of a signal by means of television or radio sets in the bedrooms of the establishment’s patients. Article 5(2)(e), (3)(b) and (5) of that directive is not such as to affect that interpretation.

   First of all, the concept of ‘communication’, within the meaning of that provision, must be construed as referring to any transmission of the protected works, irrespective of the technical means or process used.

   Furthermore, it must be noted that the term ‘public’ in that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. 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. A spa establishment is likely to accommodate, both at the same time and successively, an indeterminate but fairly large number of people who can receive broadcasts in their rooms.

   Lastly, 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. 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 paras 25, 27-29, 31, 32, 41, operative part 1)

2.  Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society 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.

   Nevertheless, 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 that obligation cannot serve as the basis for an interpretation of national law contra legem.

   (see paras 45, 48, operative part 2)

3.  See the text of the decision.

   (see para. 50)

4.  See the text of the decision.

   (see para. 56)

5.  Article 17(11) of Directive 2006/123 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as excluding the service provided by a collecting society to a user of protected works from the scope of Article 16 of that directive.

   Accordingly, since Article 16 of Directive 2006/123 is inapplicable, it must be interpreted as not precluding national legislation which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single copyright collecting society and thereby prevents users of such works from benefiting from the services provided by another collecting society established in another Member State.

   (see paras 65, 66, operative part 3)

6.  National legislation which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single collecting society and thereby prevents users of such works from benefiting from the services provided by another collecting society established in another Member State and prohibiting, in practice, the provision of such a service, constitutes a restriction on the freedom to provide services. 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.

   In that regard, the protection of intellectual property rights constitutes such an overriding reason in the public interest. Furthermore, legislation which grants a collecting society a monopoly over the management of copyright in relation to a category of protected works in the territory of the Member State concerned must be considered as suitable for protecting intellectual property rights, since it is liable to allow the effective management of those rights and an effective supervision of their respect in that territory.

   It does not appear, as regards a communication of works to the public, that — as EU law stands at present — there is another method allowing the same level of copyright protection as the territory-based protection and thus territory-based supervision of those rights, a method of which legislation such as that at issue forms a part. In those circumstances, it cannot be found that such legislation, because it prevents a user of the protected works from benefiting from the services provided by a collecting society established in another Member State, goes beyond what is necessary in order to attain the objective of protecting intellectual property rights.

   Consequently, Article 56 TFEU must be interpreted as not precluding such legislation of a Member State.

   (see paras 69-72, 76, 78, 79, operative part 3)

7.  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 granted to 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.

   (see para. 83)

8.  Article 102 TFEU must be interpreted as not precluding legislation of a Member State which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single collecting society and thereby prevents users of such works from benefiting from the services provided by another collecting society established in another Member State.

   The mere fact that a Member State grants a collecting society a monopoly over the management of copyright relating to a category of protected works in the territory of that Member State is not, as such, contrary to Article 102 TFEU.

   However, 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. Moreover, if such an abuse were found and if it were attributable to the legislation applicable to that collecting society, that legislation would be contrary to Article 102 TFEU and Article 106(1) TFEU.

   It is for the referring court to examine, if necessary, whether such a situation exists in the case in the main proceedings.

   (see paras 84, 89-92, operative part 3)

Case C‑351/12

OSA — Ochranný svaz autorský pro práva k dílům hudebním o.s.

v

Léčebné lázně Mariánské Lázně a.s.

(Request for a preliminary ruling from the Krajský soud v Plzni)

‛Directive 2001/29/EC — Copyright and related rights in the information society — Definition of ‘communication to the public’ — Transmission of works in a spa establishment — Direct effect of the provisions of the directive — Articles 56 TFEU and 102 TFEU — Directive 2006/123/EC — Freedom to provide services — Competition — Exclusive right of collective management of copyright’

Summary — Judgment of the Court (Fourth Chamber), 27 February 2014

1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Communication to the public — Meaning — Intentional distribution by a spa establishment of a signal by means of television or radio sets in the bedrooms of the establishment’s patients — Included

   (European Parliament and Council Directive 2001/29, Art. 3(1))

2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Article 3(1) — Not possible to rely on that provision against an individual — Obligations of national courts — Obligation to interpret national law in conformity with EU law — Limits — Observance of general principles of law — Interpretation of national law contra legem

   (European Parliament and Council Directive 2001/29 l, Art. 3(1))

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the subject matter of the case in the main proceedings

   (Art. 267 TFEU)

4. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Necessity of a question referred and relevance of the questions raised — Assessment by the national court

   (Art. 267 TFEU)

5. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Additional derogations from the freedom to provide services — Scope — Service provided by a collecting society to a user of protected works — Included — Inapplicability of Article 16 of that directive

   (European Parliament and Council Directive 2006/123, Arts 16, 17(11))

6. Freedom to provide services — Restrictions — National legislation which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single collecting society — Justification by reasons in the public interest — Protection of intellectual property rights — Lawfulness

   (Art. 56 TFEU))

7. Competition — Public enterprises and enterprises entrusted with special or exclusive right by the Member States — Creation of a dominant position — Not in itself incompatible with Article 102 TFEU

   (Arts 102 TFEU and 106(1) TFEU)

8. Competition — Dominant position — Collecting society enjoying a legal monopoly — Evidence of abuse — Imposition of fees which are appreciably higher than those charged in other Member States — Imposition of prices which are excessive in relation to the economic value of the service provided — To be determined by the national court

   (Arts 102 TFEU and 106(1) TFEU)

1.  Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding legislation of a Member State which excludes the right of authors to authorise or prohibit the communication of their works, by a spa establishment which is a business, through the intentional distribution of a signal by means of television or radio sets in the bedrooms of the establishment’s patients. Article 5(2)(e), (3)(b) and (5) of that directive is not such as to affect that interpretation.

   First of all, the concept of ‘communication’, within the meaning of that provision, must be construed as referring to any transmission of the protected works, irrespective of the technical means or process used.

   Furthermore, it must be noted that the term ‘public’ in that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. 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. A spa establishment is likely to accommodate, both at the same time and successively, an indeterminate but fairly large number of people who can receive broadcasts in their rooms.

   Lastly, 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. 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 paras 25, 27-29, 31, 32, 41, operative part 1)

2.  Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society 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.

   Nevertheless, 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 that obligation cannot serve as the basis for an interpretation of national law contra legem.

   (see paras 45, 48, operative part 2)

3.  See the text of the decision.

   (see para. 50)

4.  See the text of the decision.

   (see para. 56)

5.  Article 17(11) of Directive 2006/123 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as excluding the service provided by a collecting society to a user of protected works from the scope of Article 16 of that directive.

   Accordingly, since Article 16 of Directive 2006/123 is inapplicable, it must be interpreted as not precluding national legislation which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single copyright collecting society and thereby prevents users of such works from benefiting from the services provided by another collecting society established in another Member State.

   (see paras 65, 66, operative part 3)

6.  National legislation which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single collecting society and thereby prevents users of such works from benefiting from the services provided by another collecting society established in another Member State and prohibiting, in practice, the provision of such a service, constitutes a restriction on the freedom to provide services. 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.

   In that regard, the protection of intellectual property rights constitutes such an overriding reason in the public interest. Furthermore, legislation which grants a collecting society a monopoly over the management of copyright in relation to a category of protected works in the territory of the Member State concerned must be considered as suitable for protecting intellectual property rights, since it is liable to allow the effective management of those rights and an effective supervision of their respect in that territory.

   It does not appear, as regards a communication of works to the public, that — as EU law stands at present — there is another method allowing the same level of copyright protection as the territory-based protection and thus territory-based supervision of those rights, a method of which legislation such as that at issue forms a part. In those circumstances, it cannot be found that such legislation, because it prevents a user of the protected works from benefiting from the services provided by a collecting society established in another Member State, goes beyond what is necessary in order to attain the objective of protecting intellectual property rights.

   Consequently, Article 56 TFEU must be interpreted as not precluding such legislation of a Member State.

   (see paras 69-72, 76, 78, 79, operative part 3)

7.  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 granted to 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.

   (see para. 83)

8.  Article 102 TFEU must be interpreted as not precluding legislation of a Member State which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single collecting society and thereby prevents users of such works from benefiting from the services provided by another collecting society established in another Member State.

   The mere fact that a Member State grants a collecting society a monopoly over the management of copyright relating to a category of protected works in the territory of that Member State is not, as such, contrary to Article 102 TFEU.

   However, 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. Moreover, if such an abuse were found and if it were attributable to the legislation applicable to that collecting society, that legislation would be contrary to Article 102 TFEU and Article 106(1) TFEU.

   It is for the referring court to examine, if necessary, whether such a situation exists in the case in the main proceedings.

   (see paras 84, 89-92, operative part 3)