Provisional text

delivered on 5 June 2025 (1)

Case C‑161/24

OSA, z.s., formerly OSA – Ochranný svaz autorský pro práva k dílům hudebním, z.s.

Úřad pro ochranu hospodářské soutěže

(Request for a preliminary ruling from the Krajský soud v Brně (Regional Court, Brno, Czech Republic))

( Reference for a preliminary ruling – Competition – Dominant position – Article 102 TFEU – Collective management organisation handling copyright – Rates for the provision of a licence to make copyrighted works available – Accommodation establishments – Calculation method – Failure to take the occupancy of rooms into account – Unfair trading conditions – Excessive prices )

I.Introduction

1.By the nature of their activity, collective management organisations handling copyright and related rights often have a de facto or de jure monopoly over the markets for granting authorisations for the use of various categories of protected subject matter. (2) In the Court’s view, that situation amounts to a dominant position, within the meaning of Article 102 TFEU, (3) which means that those organisations are, inter alia, prohibited from any abuse of that position.

2.The absence of such abuse must also be reviewed by taking into account the particular nature of the activity of those collective management organisations and, in particular, the specific nature of the rights managed by them. The present case will give the Court the opportunity to develop and clarify its case-law on the matter.

3.The Court will thus have to answer the central question in the present case, namely whether a collective management organisation handling copyright, which is in a dominant position, is required, when setting the amount of the royalties collected from hotel establishments for the provision of a licence to make protected works available by means of television and radio receivers located in rooms, to take into account the actual occupancy of the rooms in those establishments, failing which it is liable to impose an unfair price, contrary to Article 102 TFEU.

II.Legal framework

A.European Union law

4.Article 3 of Directive 2001/29/EC, (4) entitled ‘Right of communication to the public of works and right of making available to the public other subject-matter’, provides in paragraph 1:

‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’

B.Czech law

5.Paragraph 23 of zákon č. 121/2000 Sb., o právu autorském, o právech souvisejících s právem autorským a o změně některých zákonů (autorský zákon) (Law No 121/2000 on copyright, related rights and amending certain laws), in the version in force between 19 May 2008 and 6 November 2014, guaranteed authors the right to a royalty for the use of their works made available to people staying in private rooms by means of devices technically capable of receiving a radio or television transmission. Under that paragraph, that royalty was not to exceed, in total for all collective management organisations, 50% of the amount, set by a special law, of the royalty for a device.

6.Paragraph 11 of zákon č. 143/2001 Sb., o ochraně hospodářské soutěže (Law No 143/2001 on the protection of competition), in the version applicable to the dispute in the main proceedings, provides:

‘Abuse of a dominant position to the detriment of other undertakings or consumers shall be prohibited. Abuse of a dominant position shall consist particularly of

(a)the direct or indirect imposition of unfair conditions in agreements with other market participants, particularly the imposition of performance which at the time of conclusion of a contract is manifestly disproportionate to the consideration provided,

…’

III.The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

7.OSA z.s., formerly OSA – Ochranný svaz autorský pro práva k dílům hudebním, z.s. (Society for the protection of copyright in musical works, Czech Republic; ‘OSA’), is a collective management organisation of copyright in the Czech Republic.

8.By decision of 18 December 2019, the Úřad pro ochranu hospodářské soutěže (Office for the Protection of Competition, Czech Republic) (‘the Czech competition authority’) found that, during the period from 19 May 2008 to 6 November 2014, OSA had applied, in connection with licences to providers of hotel accommodation in the Czech Republic, without objective justification, copyright royalties for the performance of musical, literary, dramatic, musical drama, choreographic, pantomime, audiovisual arts, the visual arts and architectural works, and the visual components of audiovisual works, the pricing of which did not take into account the occupancy rate of the establishments concerned. According to that decision, OSA required those providers to pay royalties even for unoccupied rooms in which there had been no use of such works that had been made available.

9.The Czech competition authority took the view that, by that practice, OSA had imposed unfair trading conditions on the national market for the granting of licences for the use of copyright in respect of those works by means of audio and audiovisual devices for receiving radio or television broadcasts. It considered that the practice at issue constituted an abuse of a dominant position prohibited by Article 102 TFEU and by the corresponding provisions of Czech competition law. It ordered OSA to pay a fine of 10 676 000 Czech koruny (CZK) (approximately EUR 429 000) and prohibited it from engaging in such a practice.

10.OSA appealed to the Krajský soud v Brně (Regional Court, Brno, Czech Republic), the referring court, against the decision of 23 November 2020 by which the Chairperson of the Czech competition authority had rejected its complaint against the decision of 18 December 2019.

11.The referring court states that the parties agree that OSA has a de facto monopoly in the Czech Republic in the field of the collective management of copyright. During the period of infringement at issue in the main proceedings, OSA charged fees to hotels in return for the possibility of using television and radio in their rooms, whether those rooms were occupied or not. However, the parties disagree on the interpretation of the Court’s case-law on the concept of ‘abuse of a dominant position’ and on the application of that case-law to the facts of the dispute in the main proceedings.

12.According to OSA, the Czech competition authority should have examined whether its pricing practice could be regarded as an abusive pricing practice in the light of the criteria set out by the Court in the judgment in United Brands and United Brands Continentaal v Commission (5) and applied to the specific context of collective management organisations in the judgments in Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība (6) and SABAM. (7)

13.The referring court considers, however, that the Court has not yet ruled on the question of whether the failure to take into account the occupancy rate of hotel rooms when pricing copyright royalties may constitute an abuse of a dominant position within the meaning of Article 102 TFEU.

14.In the first place, the referring court doubts, in essence, OSA’s assertion that the dispute in the main proceedings can be resolved by applying the principles established by the Court in the judgment in SABAM. According to that court, OSA takes the view that, in the case which gave rise to that judgment, the Court also had to familiarise itself with a calculation method which included the payment of copyright royalties for works which, although made available, had not been performed as part of a festival. According to OSA, it may indeed be unreasonable to demand the payment of royalties even though no work from the collective management organisation’s repertoire has been made available to the public at that festival. However, it would be reasonable to require payment of an annual royalty for such provision in hotels, irrespective of the hotel’s occupancy rate, with the exception of rooms which remained unoccupied throughout the year.

15.In the second place, the referring court also notes that the Court does not appear to have laid down specific criteria for determining whether the failure to take account of the occupancy rate of rooms when calculating the royalty must be assessed, in the light of Article 102 TFEU, as falling within the scope of a practice of excessive pricing, as OSA asserts, or as falling within the scope of a practice imposing ‘unfair trading conditions’, within the meaning of that provision, as the Czech competition authority asserts.

16.Even if that second hypothesis were correct, the referring court considers that it would still be necessary to determine the criteria for establishing whether a trading condition is unfair. In that regard, OSA considers that three cumulative criteria must be met, namely that that condition must (a) be unrelated to the purpose of the agreement or not necessary for ensuring its expected effect, (b) cause harm to the other party to the agreement and (c) be neither appropriate nor fair. By contrast, the Czech competition authority asserts that neither the European Commission nor the EU Courts have applied those criteria and that it was sufficient, in the present case, to assess whether the trading condition at issue was justified and proportionate.

17.Similarly, if the first hypothesis were to be accepted, the referring court considers that it would still be necessary to determine whether OSA’s pricing practice can be regarded as contrary to Article 102 TFEU in so far as it imposes excessive prices. The Court’s interpretation would make it possible to clarify whether, and how, the criteria stemming from the judgment in United Brands can be applied in the context of the present case.

18.In those circumstances, the Krajský soud v Brně (Regional Court, Brno) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Can Article 102(a) [TFEU] be interpreted as meaning that the conduct of a collective management company that has a de facto monopoly in a Member State and charges accommodation facility operators prices for the provision of a licence to make copyrighted works available by means of television and radio receivers located in rooms intended for the accommodation of private guests, which do not take into account the actual occupancy of the individual rooms of the accommodation facilities concerned, amount to an abuse of a dominant position, within the meaning of that article?

(2)If the first question is answered in the affirmative, must such a practice be assessed in terms of (a) the application of unfair trading conditions or (b) the application of excessive prices?

(a)If the correct standard is the application of unfair trading conditions, what is the specific test to be applied in assessing it?

(b)If the correct standard is the application of excessive prices, what is the specific test to be applied – the general “United Brands test” or a particular modified version thereof?

(3)In establishing an infringement of Article 102(a) [TFEU] in relation to the conduct referred to in the first question, is it necessary to prove actual or potential adverse effects on competition (including effects on consumer welfare and the exploitative effects of the dominant entity’s conduct)?

(4)In establishing an infringement of Article 102(a) [TFEU] in relation to the conduct referred to in the first question, is it necessary to prove that the conduct has a substantial effect on trade between EU Member States, or is it sufficient to have a reasonable assumption that such an effect might occur and it is not necessary to examine its actual extent?’

19.OSA, the Czech competition authority, the Spanish and French Governments and the Commission have submitted written observations.

20.The same parties participated in the hearing held on 13 March 2025.

21.As requested by the Court, this Opinion will be limited to analysing the first two questions.

IV.Analysis

22.By its first two questions, which, in my view, should be considered together, the referring court asks the Court, in essence, whether Article 102 TFEU must be interpreted as meaning that the fact that a collective management company in a dominant position does not take into account the actual occupancy rate of hotel establishments, when setting the amount of royalties collected for the provision of a licence to make copyrighted works available by means of television and radio receivers located in rooms intended for the private accommodation of guests, constitutes either a practice of excessive pricing or the imposition of other unfair trading conditions.

23.I would point out that the dispute in the main proceedings arose as a result of a decision of the Czech competition authority imposing a fine on OSA on the ground that it had abused its dominant position by not taking into account, when setting the amount of its royalties, the actual occupancy rate of hotel establishments. More specifically, that authority considered that OSA had, in so doing, demanded the payment of royalties for a service which had not been provided in so far as there had been no communication to the public of works protected by copyright in the rooms at those hotels that were unoccupied.

24.However, I am of the opinion, in the light of the Court’s case-law on the concept of ‘communication to the public’, that such a view is incorrect and cannot therefore form the basis for the Czech competition authority’s finding that OSA abused its dominant position simply by failing to take account of the actual occupancy rate of hotel establishments when setting the amount of its royalties (A).

25.It remains to be determined whether that failure to take that factor into account may nevertheless be of some relevance and, if so, to what extent, having regard to the analysis of the practice of setting the amount of the royalties collected by OSA from hotel establishments in the light of Article 102 TFEU, which I shall endeavour to do in the second part of my analysis (B).

A.Irrelevance of hotel room occupancy in assessing the communication to the public of a work and its consequences for classification as an ‘abuse of a dominant position’

26.According to the Czech competition authority, OSA abused its dominant position by collecting royalties without anything being provided in return, in so far as no protected works were communicated to the public in unoccupied hotel rooms.

27.However, as OSA and the Commission submit, such an assessment is not consistent with the concept of ‘communication to the public’ of protected works, within the meaning of Directive 2001/29, as interpreted in the case-law of the Court.

28.In that regard, I would observe that Article 3(1) of Directive 2001/29 affords authors a right of a preventive nature to authorise or prohibit any communication to the public of their works. Authors are thus able, inter alia, to derive income from the use of their works in the form of a communication to the public. (8)

29.As the Commission notes, the concept of ‘communication of a work to the public’ is an autonomous concept of EU law. Although it is not defined in the actual provisions of Directive 2001/29, recital 23 thereof states that the concept of ‘communication to the public’ covers all communication to the public not present at the place where the communication originates. The right of communication to the public covers any transmission or retransmission of a work by wire or wireless means, including broadcasting. Recital 27 of that directive adds that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication to the public.

30.The concept of ‘communication to the public’ is also the subject of extensive case-law. Thus, the Court has very clearly held that a hotel’s provision to its customers of access to protected subject matter by placing television sets in its rooms and by distributing via those sets the television signal received by the central antenna constitutes a communication to the public. (9) In those circumstances, there seems to me to be no doubt that the fact that the hotel establishments in the main proceedings have installed television or radio receivers in their rooms and distribute the signal constitutes a communication to the public. It is irrelevant, in that regard, whether all of the hotel rooms were occupied.

31.The Czech competition authority argues that the relevant public is in fact not the hotel guests as a whole, but the guests in each room individually. As the concept of ‘communication to the public’ presupposes not only an act of communication of a protected work, but also a public for which that communication is intended, (10) it follows that, where a room in an establishment remains unoccupied, there is no public to whom the protected work is communicated.

32.In accordance with the Court’s settled case-law, the public to whom a communication must be addressed must consist of a potentially indeterminate but fairly large number of people, such that there is a de minimis threshold which excludes from that concept groups of persons which are too small or insignificant. (11)

32.The Court also stated that account should be taken of the cumulative effect of making protected works available to recipients not only at the same time but also in succession. (12)

33.As regards, more specifically, the clientele of hotels, the Court has held that a general approach is required, making it necessary to take into account not only customers in hotel rooms, but also customers who are present in any other area of the hotel and able to make use of a television set installed there. It is also necessary to take into account the fact that, usually, hotel customers quickly succeed each other. As a general rule, a fairly large number of persons are involved, so that they may be considered to be a public. (13)

34.In other words, the public targeted by the act of communication consisting of the installation by hotel establishments of television and radio receivers in their rooms is not the guests in each room, taken individually, but the guests of the hotel as a whole.

35.Moreover, even if it were possible to accept such fragmentation of the clientele of a hotel in order to determine whether or not there is a public within the meaning of the concept of ‘communication to the public’, it is still necessary, as the Court has held, to take into account the cumulative effects of making protected works available to recipients in succession. As regards the activity of hotel establishments, and as the Court has pointed out, the guests in each room, taken individually, generally follow each other in quick succession, so that, even in such a situation, the number of successive guests is sufficiently large to constitute a public within the meaning of the concept of ‘communication to the public’.

36.Lastly, it follows from the case-law of the Court that it is not decisive, in order to establish the existence of ‘communication to the public’ of protected works, that customers who have not switched on the television or radio, as in the main proceedings, did not actually have access to the works. (14) Similarly, in order to establish the existence of such communication, it is not therefore decisive to ensure that each room in the hotel in question was actually occupied. In other words, the public to whom the protected works are communicated is indeed the clientele of the hotel as a whole, without the actual occupancy of the rooms in that hotel being relevant in that regard.

37.It follows, first, that, contrary to what the Czech competition authority maintains, the fact that a hotel establishment installs television and radio receivers in rooms intended for the accommodation of guests and provides the signal does indeed constitute a ‘communication to the public’ within the meaning of Article 3 of Directive 2001/29. The provision, by OSA, of the licence for that communication to the public constituted a service provided by that body to hotel establishments. There can therefore be no question of a royalty being charged in return for a non-existent service.

38.Secondly, the Czech competition authority could not base its finding of an abuse of a dominant position on the part of OSA solely on the fact that it had demanded payment of royalties in the absence of communication to the public of protected works by not taking into account the actual occupancy rate of hotel establishments, since such communication to the public takes place even if the rooms, taken individually, are not actually occupied.

39.That conclusion, that the failure to take account of the actual occupancy rate of hotel establishments when setting the amount of the royalties collected by OSA cannot, in and of itself, constitute an abuse of a dominant position within the meaning of Article 102 TFEU, does not, however, make it possible to determine whether that failure to take that factor into account may nevertheless have an impact on the more general analysis of a possible abuse of a dominant position, which will be the subject of the second part of my analysis.

B.Irrelevance of the actual occupancy of a hotel establishment in order to determine whether there has been an abuse of a dominant position on the part of a collective management organisation of copyright when setting the amount of royalties

1.Practice falling within the scope of the prohibition of unfair prices

40.The second paragraph of Article 102 TFEU lists various practices which may constitute an abuse of a dominant position, including the imposition of unfair prices or unfair trading conditions. The Czech competition authority and OSA disagree as to whether the setting of the amount of royalties by a collective management organisation must be regarded as a practice relating to the imposition of unfair prices or as the imposition of other unfair trading conditions, it being understood that the analysis of the practice differs according to that classification.

41.Like OSA, the Commission and the French Government, it seems clear to me that the practice at issue concerns the prices charged by OSA, as a collective management organisation, to hotel establishments in return for the provision of a licence to make copyrighted works available by means of television and radio receivers located in the rooms of those establishments.

42.The fact, on which the Czech competition authority relies, that the method for setting the amount of those royalties was unilaterally changed by OSA in 2008 cannot alter that finding, since the amendment to the trading conditions still concerns the prices charged by OSA.

43.The practice at issue must therefore be assessed in the light of the case-law on unfair prices, in the specific context of the provision of licences by collective management organisations.

2.The case-law on unfair prices in the context of the setting of the amount of royalties by collective management organisations

44.As the referring court notes, the Court, in its landmark judgment in United Brands, defined a price as ‘excessive’, within the meaning of Article 102 TFEU, as one which ‘has no reasonable relation to the economic value of the product supplied’. (15) In order to determine whether such a price is excessive, the Court established a two-stage test in that judgment in which it is necessary, first, to determine whether the difference between the costs actually incurred and the price actually charged is excessive and, secondly, if that is the case, to determine whether a price has been imposed which is either unfair in itself or when compared to competing services. (16)

45.The definition of an ‘excessive price’, which has been applied consistently since the judgment in United Brands, also applies to the practices of collective management organisations when setting the amount of royalties. (17)

46.As the Court has pointed out, in such a context it is a question of ascertaining whether the royalties levied by a collective management organisation in a dominant position are reasonable in relation to the economic value of the service provided by that organisation, which consists in making the repertoire of music protected by copyright that it manages available to users. (18)

47.However, the Court does not limit the possibility of demonstrating the existence of an excessive price to the satisfaction of that test. It clearly acknowledges that other methods can be used to determine whether a price may be excessive. (19) With regard, in particular, to the royalties imposed by collective management companies, those methods may, inter alia, be based on a comparison between the price whose fairness is disputed and benchmarks such as prices previously charged by the dominant undertaking for the same services in the same relevant market, prices charged by such an undertaking for other services, or prices charged by other undertakings for the same or comparable services in other national markets, provided, however, that that comparison is made on a consistent basis. (20)

48.In other words, there is no single method of determining whether the royalties set by collective management organisations are excessive, since the choice of the most appropriate method and, more generally, the assessment of the existence of excessive prices depend on each individual case.

49.Thus, it is common ground that it is for the national court to determine whether such royalties may be excessive, in the light of the actual case before it and taking account of all the circumstances of that case. (21)

50.In the context of that examination, and having regard to the context in which it is carried out, the Court emphasises that the national court is obliged to take into consideration the particular nature of copyright and to seek an appropriate balance between the interest of the authors of copyright-protected works in receiving remuneration for the use of those works and that of users in being able to use those works under reasonable conditions. (22)

51.Thus, in order to ascertain whether the level of the tariffs imposed by a collective management company is fair from the perspective both of the right of authors to appropriate remuneration and of the legitimate interests of users, it is necessary to take account not only of the economic value of the collective management service as such, but also of the nature and scope of the use of the works and of the economic value generated by that use. (23)

52.According to the case-law of the Court, that value depends, in particular, on the actual number of persons who enjoy the protected works and the extent of the use of the musical works for licensees. (24)

53.In other words, the royalty applied by a collective management organisation must take account of the number of works protected by copyright actually used, (25) it being specified that the setting of the amount of that royalty, which takes account of the number of musical works actually used, may still amount to an abuse when an alternative method exists which enables the use of those works to be identified and to be quantified more precisely. (26)

54.I note, however, that the Court has introduced a certain degree of proportionality with regard to the requirement that account be taken of the quantity of works actually used when setting the amount of a royalty, which is due to the specific nature of copyright and the activity of collective management organisations. The mere existence of an alternative method allowing a more precise quantification of the works used is not, in itself, an indication that the royalty is excessive. That alternative method must also be capable of achieving the same legitimate aim, which is the protection of the interests of authors, without, however, leading to a disproportionate increase in the costs incurred for the purposes of the management of contracts and the supervision of the use of musical works protected by copyright. (27)

55.It is in the light of those considerations that it is necessary to determine whether the failure by a collective management organisation to take into account the actual occupancy rate of hotel establishments when setting the amount of the royalties collected for the provision of a licence to make copyrighted works available by means of television and radio receivers located in rooms intended for the private accommodation of guests constitutes a relevant factor in establishing the existence of an abuse of a dominant position consisting in the imposition of unfair prices.

56.In other words, as the Commission and the French Government observe, it is a question of ascertaining whether the method for calculating the amount of the royalties, which does not take account of the actual occupancy rate of rooms but favours a flat-rate approach, is capable of constituting an abuse of a dominant position in that it would lead to the imposition of unfair prices.

57.I would point out in that regard that such an examination is ultimately a matter for the referring court alone, taking into account all the relevant circumstances of the case. (28)

58.As the Commission and the French Government state, the installation by hotel establishments of television and radio receivers and the provision of the signal enabling protected works to be made available to customers is a service that is ancillary to the main activity of those establishments, namely the private accommodation of guests. It is an additional service offered by hotel establishments, which has an influence on the hotel’s standing and, therefore, on the price of rooms. (29) That installation is therefore carried out with the aim of obtaining some benefit.

59.That being the case, it cannot be disputed that the use by hotel establishments of protected works in the repertoire of the collective management organisation has a definite economic value.

60.Moreover, as I have pointed out, it is clear from the Court’s case-law that the value of that use in trade depends, inter alia, on the number of works protected by copyright actually used.

61.However, contrary to what the Commission and OSA maintain, I do not believe that the determination of the quantity of works actually used is made more accurate, or even permitted, by taking into account the actual occupancy rate of the rooms in hotel establishments.

62.As I pointed out in point 36 of this Opinion, the protected works must be regarded as having been communicated to the public where hotel establishments install television and radio receivers in rooms intended for the accommodation of guests and provide the signal, without it being relevant, in that regard, that the customers have actually had access to the works.

63.In other words, the quantity of works actually used, on which the economic value of their use depends, does not depend on the number of works viewed or listened to, but the number of works made available, that is to say communicated, to the relevant public.

64.Thus, taking account of the actual occupancy rate of hotel establishments when setting the amount of royalties does not make it possible to quantify and identify precisely the use of the protected works.

65.However, the same does not apply, by way of illustration, to consideration, when setting the amount of the royalties, of the number of television channels or radio frequencies made available to guests by hotel establishments, or even the number of rooms in which television or radio receivers are made available. Those two factors seem to me to be capable of accurately reflecting the quantity of protected works actually used and, consequently, of adjusting the amount of the royalties. It will therefore be for the referring court to ascertain, in the light of the specific case before it, whether the method used by OSA to set the amount of the royalties includes such factors, inter alia.

66.Thus, I consider that failure by a collective management organisation to take account of the actual occupancy rate of hotel establishments when setting the amount of the royalties collected for the provision of a licence to make copyrighted works available by means of television and radio receivers located in rooms intended for the private accommodation of guests cannot, in the light of all the relevant circumstances of the case, be regarded as a relevant factor for the purpose of finding an abuse of a dominant position consisting in the imposition of unfair prices, within the meaning of Article 102 TFEU, which it will be for the referring court to ascertain.

V.Conclusion

67.In the light of all the foregoing considerations, I propose that the Court of Justice should reply as follows to the first and second questions referred for a preliminary ruling by the Krajský soud v Brně (Regional Court, Brno, Czech Republic):

Article 102 TFEU must be interpreted as meaning that the fact that a collective management organisation in a dominant position does not take into account the actual occupancy rate of hotel establishments when setting the amount of royalties collected for the provision of a licence to make copyrighted works available by means of television and radio receivers located in rooms intended for the private accommodation of guests does not constitute, in itself, an abuse of a dominant position and cannot be regarded as a relevant factor for the purpose of finding an abuse of a dominant position consisting in the imposition of unfair prices.

—

1Original language: French.

2See my Opinion in LEA (C‑10/22, EU:C:2023:437, points 4 and 5).

3See, inter alia, judgment of 27 February 2014, OSA (C‑351/12, EU:C:2014:110, paragraph 86).

4Directive 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).

5Judgment of 14 February 1978 (27/76, ‘the judgment in United Brands’, EU:C:1978:22).

6Judgment of 14 September 2017 (C‑177/16, EU:C:2017:689).

7Judgment of 25 November 2020 (C‑372/19, ‘the judgment in SABAM’, EU:C:2020:959).

8See my Opinion in Stim and SAMI (C‑753/18, EU:C:2020:4, point 16), and, most recently, judgment of 20 June 2024, GEMA (C‑135/23, EU:C:2024:526, paragraph 17).

9Judgment of 7 December 2006, SGAE (C‑306/05, ‘the judgment in SGAE’, EU:C:2006:764, point 1 of the operative part).

10That authority refers to paragraph 42 of the judgment in SGAE.

11Judgment of 14 June 2017, Stichting Brein (C‑610/15, EU:C:2017:456, paragraph 41).

12Judgment of 14 June 2017, Stichting Brein (C‑610/15, EU:C:2017:456, paragraph 41).

13Judgment in SGAE (paragraph 38).

14Judgment in SGAE (paragraph 43).

15Judgment in United Brands (paragraph 250).

16Judgment in United Brands (paragraph 252).

17With regard to the development of the case-law on abuses of a dominant position consisting in the imposition of excessive prices in general and in the context of the setting of royalties by collective management organisations in particular, see Opinion of Advocate General Wahl in Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība (C‑177/16, EU:C:2017:286), and Opinion of Advocate General Pitruzzella in SABAM (C‑372/19, EU:C:2020:598).

18Judgment of 11 December 2008, Kanal 5 and TV 4 (C‑52/07, EU:C:2008:703, paragraph 29), and judgment in SABAM (paragraph 28).

19Judgment of 14 September 2017, Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība (C‑177/16, EU:C:2017:689, paragraph 37).

20Judgment in SABAM (paragraph 32).

21Judgment in SABAM (paragraph 29).

22Judgment of 11 December 2008, Kanal 5 and TV 4 (C‑52/07, EU:C:2008:703, paragraphs 30 and 31), and judgment in SABAM (paragraph 30).

23Judgment in SABAM (paragraph 30).

24Judgment in SABAM (paragraph 41).

25Judgment in SABAM (paragraph 50).

26Judgment in SABAM (paragraph 52).

27Judgment of 11 December 2008, Kanal 5 and TV 4 (C‑52/07, EU:C:2008:703, paragraph 40), and judgment in SABAM (paragraph 52).

28In particular, the Court is admittedly being asked only about the failure by OSA to take into account the actual occupancy rate of the hotel establishments in question when setting the amount of the royalties. The fact remains that it is apparent from the order for reference and from the file sent to the Court that, in its decision of 18 December 2019, the Czech competition authority compared the amount of the royalties collected by OSA with the amount of royalties set by collective management organisations in other Member States. While that comparison reveals rates which are significantly higher than those charged in other Member States, it may, as I pointed out in point 47 of this Opinion, constitute evidence of an abuse of a dominant position. Conversely, it may be an indication that there is no such abuse. It will therefore be for the referring court to also take that issue into account in its analysis.

29Judgment in SGAE (paragraph 44).