FT and Others v État belge.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2025:141
• Docket Number: C-575/23
• Date: 06 March 2025

Provisional text

JUDGMENT OF THE COURT (First Chamber)

6 March 2025 (*)

( Reference for a preliminary ruling – Approximation of laws – Intellectual property – Copyright and related rights – Performers engaged under an administrative law statute – Assignment of related rights by means of a regulatory act – Directive 2001/29/EC – Article 2(b) and Article 3(2) – Rights of reproduction and of making available to the public – Directive 2006/115/EC – Articles 7 to 9 – Rights of fixation, broadcasting, communication to the public and distribution – Directive (EU) 2019/790 – Articles 18 to 23 – Fair remuneration in exploitation contracts – Article 26 – Application in time – Concepts of ‘acts concluded’ and ‘rights acquired’ )

In Case C‑575/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, Belgium), made by decision of 31 August 2023, received at the Court on 15 September 2023, in the proceedings

FT,

AL,

ON

v

Belgian State,

intervener:

Orchestre national de Belgique (ONB),

THE COURT (First Chamber),

composed of K. Lenaerts, President of the Chamber, acting as President of the First Chamber, T. von Danwitz, Vice-President of the Court, acting as Judge of the First Chamber, A. Kumin, I. Ziemele (Rapporteur) and O. Spineanu-Matei, Judges,

Advocate General: M. Szpunar,

Registrar: M. Siekierzyńska, Administrator,

having regard to the written procedure and further to the hearing on 20 June 2024,

after considering the observations submitted on behalf of:

– FT, AL and ON, by S. Capiau, avocate,

– Orchestre national de Belgique (ONB), by C. Bernard, M. Buydens and D. Lagasse, avocats,

– the Belgian Government, by S. Baeyens, P. Cottin and C. Pochet, acting as Agents, and by R. Fonteyn and A. Joachimowicz, avocats,

– the European Commission, by C. Auvret and J. Samnadda, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 October 2024,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 18 to 23 and Article 26(2) of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ 2019 L 130, p. 92).

2 The request has been made in proceedings between FT, AL and ON, musicians engaged under an administrative law statute by the Orchestre national de Belgique (Belgian National Orchestra; ONB), and the Belgian State concerning the lawfulness of the Royal Decree of 1 June 2021 concerning the related rights of artistic personnel of the Belgian National Orchestra (Moniteur belge of 4 June 2021, p. 56936; ‘the Royal Decree of 1 June 2021’).

Legal context

International law

The Rome Convention

3 The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations was concluded in Rome on 26 October 1961 (‘the Rome Convention’).

4 The European Union is not a party to that convention. However, all of its Member States except for the Republic of Malta are.

5 Article 7 of that convention, which concerns minimum protection for performers, provides, in paragraph 1 thereof:

‘The protection provided for performers by this Convention shall include the possibility of preventing:

(a) the broadcasting and the communication to the public, without their consent, of their performance, except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation;

(b) the fixation, without their consent, of their unfixed performance;

(c) the reproduction, without their consent, of their unfixed performance:

(i) if the original fixation itself was made without their consent;

(ii) if the reproduction is made for purposes different from those for which the performers gave their consent;

(iii) if the original fixation was made in accordance with the provisions of Article 15, and the reproduction is made for purposes different from those referred to in those provisions.’

6 Article 8 of the Rome Convention, concerning performers acting jointly, is worded as follows:

‘Any Contracting State may, by its domestic laws and regulations, specify the manner in which performers will be represented in connection with the exercise of their rights if several of them participate in the same performance.’

7 Article 12 of that convention, which concerns secondary uses of phonograms, reads as follows:

‘If a phonogram published for commercial purposes, or a reproduction of such phonogram, is used directly for broadcasting or for any communication to the public, a single equitable remuneration shall be paid by the user to the performers, or to the producers of the phonograms, or to both. Domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of this remuneration.’

8 Article 15 of that convention sets out the exceptions to the protection guaranteed by that convention.

9 Article 19 of that convention, which concerns performers’ rights in films, reads as follows:

‘Notwithstanding anything in this Convention, once a performer has consented to the incorporation of his performance in a visual or audio–visual fixation, Article 7 shall have no further application.’

The WPPT

10 The World Intellectual Property Organisation (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.

11 Article 2 of the WPPT, entitled ‘Definitions’, provides:

‘For the purposes of this Treaty:

(a) “performers” are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;

…’

12 Articles 6 to 10 of that Treaty concern, respectively, the economic rights of performers in respect of their unfixed performances, the right of reproduction, the right of distribution, the right of rental and the right of making available of fixed performances.

European Union law

Directive 2001/29/EC

13 Recitals 9, 10, 15 and 30 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), state:

‘(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.

(10) If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. …

…

(15) The Diplomatic Conference held under the auspices of the [WIPO] in December 1996 led to the adoption of two new Treaties, the “WIPO Copyright Treaty” and the “[WPPT]”, dealing respectively with the protection of authors and the protection of performers and phonogram producers. … This Directive also serves to implement a number of the new international obligations.

…

(30) The rights referred to in this Directive may be transferred, assigned or subject to the granting of contractual licences, without prejudice to the relevant national legislation on copyright and related rights.’

14 Article 2 of that directive provides:

‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

…

(b) for performers, of fixations of their performances;

…’

15 Article 3(2) of that directive provides:

‘Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:

(a) for performers, of fixations of their performances;

…’

16 Article 5 of that directive lists the cases in which Member States may provide for exceptions and limitations to the exclusive rights provided for in Articles 2 to 4 of that directive.

17 Article 10(2) of Directive 2001/29 provides:

‘This Directive shall apply without prejudice to any acts concluded and rights acquired before 22 December 2002.’

Directive 2006/115/EC

18 Recitals 4, 5 and 7 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), state:

‘(4) Copyright and related rights protection must adapt to new economic developments such as new forms of exploitation.

(5) The creative and artistic work of authors and performers necessitates an adequate income as a basis for further creative and artistic work …

…

(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.’

19 Article 3(1) of that directive provides:

‘The exclusive right to authorise or prohibit rental and lending shall belong to the following:

…

(b) the performer in respect of fixations of his performance;

…’

20 Article 7(1) of that...