Request for a preliminary ruling from the Ondernemingsrechtbank Gent, afdeling Gent (Belgium) lodged on 13 April 2023 – Reproble SCRL v Copaco Belgium NV

(Case C-230/23, Reprobel)

Language of the case: Dutch

Referring court

Ondernemingsrechtbank Gent, afdeling Gent

Parties to the main proceedings

Applicant: Reprobel SCRL

Defendant: Copaco Belgium NV

Questions referred

Is an entity such as Reprobel, in so far as it has been entrusted by the State, by means of a royal mandate, to collect and distribute the fair compensation, set by the State, within the meaning of Article 5(2)(a) and (b) of Directive 2001/29, ¹ and over which the State exercises control, an entity against which an individual may rely, in his or her defence, on the incompatibility with EU law of a national provision which that entity seeks to impose on that individual?

Is it relevant to the answer to that question that the control exercised by the State over that entity includes:

The obligation for that entity to always forward to the competent minister a copy of the requests for data it sends to the persons liable to pay the remuneration, required both for the collection and distribution of the remuneration for reprography, in such a way that the minister is in a position to know how the entity exercises the right of supervision and decide whether it is advisable to stipulate, by means of a ministerial decree, the content, number and frequency of the requests for data in such a way as not to impede, more than is necessary, the activities of the persons receiving those requests;

The obligation for the entity to call upon the minister’s representative to send a request for data, required for the collection of the proportional remuneration for reprography, to the persons liable to pay the remuneration, the dealers, whether wholesalers or retailers, the leasing companies or equipment maintenance companies if the person liable to pay the remuneration has not cooperated in the collection, on the understanding that the entity also has the obligation to send a copy of this request to the competent minister in such a way that the latter can determine that the content, number and frequency of the requests do not impede, more than is necessary, the activities of the persons receiving those requests;

The obligation for the entity to submit to the competent minister for approval the rules for the distribution of reprography remuneration and any amendment it makes to them;

The obligation for the entity to submit the declaration form it has prepared to the competent minister for approval, without which it cannot be issued.

Is it also relevant to the answer to the question referred that the entity has the following powers?

The power to request all data necessary for collecting the remuneration for reprography from all persons who are liable to pay the remuneration, liable to pay a contribution, dealers, whether wholesalers or retailers, leasing companies and equipment maintenance companies. Every request must always state the criminal penalties applicable in the event of failure to comply with the time limit set or provision of incomplete or inaccurate information;

The power to require all persons liable to pay remuneration to provide all data relating to copied works necessary for the distribution of the remuneration for reprography;

The power to obtain all information necessary for the performance of its task from the Administratie der Douane en Accijnzen (Belgian Customs and Excise), the Administratie van de btw (Belgian VAT Administration) and the Rijksdienst voor Sociale Zekerheid (Belgian National Office for Social Security).

Does Article 5(2)(a) and (b) of Directive 2001/29 have direct effect?

Is a national court required, on the application of an individual, to disapply a national provision where that provision, imposed by the State, contravenes Article 5(2)(a) and (b) of Directive 2001/29, referred to above, in particular because that provision, contrary to the aforementioned article, obliges that individual to pay charges?

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¹ 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).