Official Journal of the European Union

C 35/14

(Case C-372/19) (1)

(Reference for a preliminary ruling - Competition - Article 102 TFEU - Abuse of a dominant position - Concept of ‘unfair price’ - Copyright collecting society - De facto monopoly - Dominant position - Abuse - Performance of musical works during music festivals - Scale based on gross revenue from the sale of admission tickets - Reasonable in relation to the service provided by the collecting society - Determination of the share of the musical repertoire of the collecting society actually performed)

(2021/C 35/18)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM)

Defendants: Weareone.World BVBA, Wecandance NV

Operative part of the judgment

Article 102 TFEU must be interpreted as meaning that, the imposition, by a collecting society having a de facto monopoly in a Member State, on organisers of musical events, for the right of communication to the public of musical works, a scale with the following attributes, does not constitute an abuse of a dominant position, within the meaning of that article:

—royalties due in respect of copyright are calculated on the basis of a rate applied to the gross revenue from the sale of admission tickets, without all of the costs relating to the organisation of the festival that are unrelated to the musical works performed there being deducted from that revenue, provided that, having regard to all the relevant circumstances of the case, the royalties actually imposed by the collecting society on application of that scale are not excessive in view, in particular, of the nature and extent of the use of the works, the economic value generated by that use and the economic value of the services provided by that collecting society, which it is for the national court to verify, and

—a staggered flat-rate system is used to determine which proportion of the musical works performed were taken from the repertoire of that collecting society, provided that another method does not exist which enables those works to be identified and quantified more precisely and which is capable of achieving the same legitimate aim, namely the protection of the interests of authors, composers and music publishers, without however leading to a disproportionate increase in the costs incurred in relation to the management of the contracts and the supervision of the use of musical works protected by copyright; it is for the national court to verify that, in the light of the particular case before it and taking into account all the relevant circumstances, including the availability and reliability of the data provided as well as the existing technological tools.

(1) OJ C 270, 12.8.2019.