Request for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 19 January 2024 – DADA Music SRL, Uniunea Producătorilor de Fonograme din România (UPFR) v Asociația Radiourilor Locale și Regionale (ARLR)

(Case C-37/24, DADA Music and UPFR)

Language of the case: Romanian

Referring court

Curtea de Apel București

Parties to the main proceedings

Applicant at first instance and appellant on appeal: DADA Music SRL

Defendant at first instance and appellant on appeal: Uniunea Producătorilor de Fonograme din România (UPFR)

Intervener at first instance and respondent on appeal: Asociația Radiourilor Locale și Regionale (ARLR)

Questions referred

Must Article 8(2) of Directive 2006/115/EC ¹ and the second paragraph of Article 16(2) of Directive 2014/26/EU, ² read in conjunction with Articles 17 and 52 of the Charter of Fundamental Rights of the European Union, 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?

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?

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?

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?

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¹ 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 (codified version) (OJ 2006 L 376, p. 28).

¹ 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).