Provisional text

delivered on 6 June 2024 (1)

Case C-230/23

Reprobel CV

Copaco Belgium NV

(Request for a preliminary ruling from the Ondernemingsrechtbank Gent Afdeling Gent (Ghent Business Court, Ghent Division, Belgium))

( Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Directive 2001/29/EC – Article 2 – Reproduction right – Article 5(2)(a) and (b) – Exceptions and limitations – Reproduction for private use – Fair compensation – Direct effect – Entity appointed to collect and distribute fair compensation – Possibility of relying directly on the directive against that entity )

Introduction

1.The questions referred for a preliminary ruling in the present case necessitate a return to a fundamental issue in EU law, namely the problem of the direct effect of directive provisions and the possibility of relying on those provisions in vertical relations, that is to say, in a dispute between an individual and a Member State. Although this issue has existed since the European Union’s legal order was first constructed, it still gives rise to disputes and controversy. (2)

2.The present case concerns both of the problems referred to above. On the one hand, it concerns the question of whether the provisions of a directive, which the Member State in question decided to implement despite their optional nature, can be considered to have direct effect. In addition, in the present case, that implementation, as is clear from the Court’s judgment, was carried out in a manner inconsistent with EU law. On the other hand, the present case once again raises the question of the possibility of relying on the direct effect of a directive provision against a private entity entrusted by a Member State to perform tasks in the public interest.

3.It appears that the Court will have to clarify its existing case-law on both of those issues.

Legislative framework

European Union law

4.Article 2 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 (3) 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:

(a) for authors, of their works;

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

(c) for phonogram producers, of their phonograms;

(d) for the producers of the first fixations of films, in respect of the original and copies of their films;

(e) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite’.

5. According to Article 5(2)(a) and (b) of the directive:

‘Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:

(a) in respect of reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation;

(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned;’.

Belgian law

6.Belgian law, in the wording applicable to the dispute in the main proceedings, introduced remuneration for exceptions to the reproduction right in Articles 59 and 60 of the wet van 30 juni 1994 betreffende het auteursrecht en de naburige rechten (Law of 30 June 1994 on Copyright and Related Rights). (4) That remuneration consisted of a lump-sum part based on the number of devices allowing the reproduction of protected works, and a part proportional to the number of copies of such works made.

7.Under Article 60bis of that law, the entity appointed to collect and distribute the remuneration was authorised to obtain relevant information from the customs authorities, the value added tax authorities, the social security offices, the Monitoring and Mediation service of the Ministry of Economy, and, subject to reciprocity, from similar foreign bodies.

8.Under Article 61 of the above law, the amount of remuneration was set by the koninklijk besluit van 30 oktober 1997 betreffende de vergoeding verschuldigd aan auteurs en uitgevers voor het kopiëren voor privégebruik of didactisch gebruik van werken die op grafische of op soortgelijke wijze zijn vastgelegd (Royal Decree of 30 October 1997 concerning the remuneration of authors and publishers for copies made for private or didactic purposes of works fixed on a graphic or similar medium). (5) Under Article 7 of that decree, entities obliged to pay the remuneration in question were required to submit monthly declarations to the entity appointed to collect the remuneration, which included information allowing the obliged entity to be identified and the amount of remuneration due on the basis of the number of devices sold to be determined.

9.Under the koninklijk besluit van 15 oktober 1997 tot het belasten van een vennootschap met de inning en de verdeling van de vergoeding voor het kopiëren van werken die op grafische of soortgelijke wijze zijn vastgelegd (Royal Decree of 15 October 1997 entrusting a society to collect and distribute the remuneration for the copying of works fixed on a graphic or similar medium), (6) Reprobel was appointed to collect and distribute the remuneration in question.

Facts in the main proceedings, procedure and questions referred

10.Copaco Belgium NV, a company incorporated under Belgian law (‘Copaco’), is a distributor of IT equipment for businesses and consumers, including copying equipment such as copiers and scanners. As such, it has been subject to the obligation to pay remuneration for the reproduction of works.

11.In its judgment in Hewlett-Packard Belgium, (7) the Court ruled in particular that Article 5(2)(a) and (b) of Directive 2001/29 precludes, in principle, legislation, such as the Belgian legislation at issue, which introduces a system that combines lump-sum remuneration with proportional remuneration, and does not at the same time include mechanisms that would allow the amount of remuneration to be adjusted to the actual harm suffered by the rightholders. (8) New Belgian legislation on remuneration for the reproduction of works, which complies with the guidelines resulting from that judgment, came into force in March 2017.

12.As a result of the aforementioned judgment, Copaco refused to pay the invoices issued to it by Reprobel on the basis of the declarations Copaco had submitted for the period from November 2015 to December 2016, since Copaco considers that, as was found in the judgment in Hewlett-Packard Belgium, the Belgian system of remuneration for the reproduction of works was incompatible with EU law during the period in question.

13.On 16 December 2020, Reprobel brought legal proceedings against Copaco, demanding payment of the outstanding remuneration for the reproduction of works plus interest and damages. The action was lodged with the referring court in accordance with its territorial jurisdiction. Before that court, Copaco argues that Article 5(2)(a) and (b) of Directive 2001/29 has direct effect, and that Reprobel is an emanation of the State against which that direct effect can be relied on. Reprobel disputes both of those claims.

14.Under those circumstances, the Ondernemingsrechtbank Gent Afdeling Gent (Ghent Business Court, Ghent Division, Belgium) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1) 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, 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?

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

– The obligation for the 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 the activities of the persons receiving those requests more than is necessary;

– 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?

(3) 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).

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

(5) 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?’

15.The request for a preliminary ruling was received by the Court on 13 April 2023. Written observations were submitted by the parties to the main proceedings, the Belgian government and the European Commission. The same parties, as well as the French government, were represented at the hearing held on 6 March 2024.

Analysis

16.The referring court has referred five questions for a preliminary ruling in the present case. The first three relate to the possibility of considering an entity such as Reprobel to be an emanation of a Member State, with the result that an individual can directly rely on a directive provision against it. The two final questions concern the possibility of relying directly on Article 5(2)(a) and (b) of Directive 2001/29. I propose to begin the analysis with those last two questions.

The fourth and fifth questions

17.By its fourth and fifth questions, the referring court is essentially seeking to determine whether Article 5(2)(a) and (b) of Directive 2001/29 has direct effect, such that an individual may rely on it before a national court to avoid payment of the charge in respect of fair compensation where that charge is collected on the basis of national legislation which is inconsistent with those provisions of Directive 2001/29.

The principle of direct effect

18.The principle of the direct effect of EU law dates back to the very beginnings of the EU’s legal system. Indeed, as is well known, the Court established the principle in the judgment in van Gend & Loos, which is of fundamental importance to that system. (9) The application of the principle of direct effect to directive provisions that meet certain conditions was confirmed in the judgment in Van Duyn. (10) Currently, the Court formulates the principle as follows:

‘It follows from the settled case-law of the Court that, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly … .

The Court has stated that a provision of EU law is, first, unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States and, second, sufficiently precise to be relied on by an individual and applied by a court where it sets out an obligation in unequivocal terms ….

The Court has also held that, even though a directive leaves the Member States a degree of latitude when they adopt rules in order to implement it, a provision of that directive may be regarded as unconditional and precise where it imposes on Member States in unequivocal terms a precise obligation as to the result to be achieved, which is not coupled with any condition regarding application of the rule laid down by it …’. (11)

19.It is in this context that the answer to the fourth and fifth questions must be considered.

Application to the present case

20.Reprobel and the Belgian and French governments argue that in view of the wide latitude that Member States have in organising the system of fair compensation referred to in Article 5(2)(a) and (b) of Directive 2001/29 and its financing, those provisions are not sufficiently unconditional and precise to attribute direct effect to them on the basis of the Court’s case-law cited above.

21.That statement seems open to debate in light of the Court’s case-law, according to which those provisions impose an obligation of result on the Member States which have implemented the exceptions to the reproduction right provided for therein, meaning that those Member States are obliged to ensure the actual recovery of fair compensation, (12) in an amount calculated on the basis of the harm caused to the rightholders, (13) and the financial burden of that compensation should be borne, in principle, by the final users. (14) The Court had little difficulty, therefore, in detecting in the provisions in question precise and unconditional rules regarding how the fair compensation provided for therein should be regulated.

22.Above all, however, and irrespective of whether the obligation to establish such compensation itself meets the criteria for direct effect set out in point 18 of the present Opinion, the argument of the aforementioned parties to the proceedings is, in my view, completely misplaced in the context of the present case. For this case is not about establishing the direct effect of the provisions of Directive 2001/29 in abstract terms, but rather in connection with the dispute in the main proceedings. Those proceedings do not concern the payment of fair compensation directly on the basis of the provisions in question, but rather Copaco’s right to refuse to pay a charge which serves to finance that compensation and is collected in a manner inconsistent with the directive (‘the fee at issue’).

23.When considering the question of the direct effect of EU law, it is necessary to take into account all norms (in other words, legal rules) that arise from the provisions of that law and from which individuals derive precise and unconditional rights vis-à-vis the State. At the same time, those rules do not have to follow directly from the literal wording of the legislation, but may be constructed on its basis through interpretation, in particular by way of interpretation by the Court. Indeed, as Copaco rightly points out, the Court’s interpretation of the provisions of EU law under the preliminary ruling procedure clarifies and specifies the meaning and effect of those provisions as they should be understood and applied from their entry into force, and therefore that interpretation must be taken into account when determining whether a provision is sufficiently precise to be considered to have direct effect. (15)

24.As for the provisions of Article 5(2)(a) and (b) of Directive 2001/29, three legal norms can be derived from them in particular. Firstly, the power of Member States to introduce exceptions to the reproduction right under those provisions; this norm is optional. Secondly, the obligation to establish fair compensation for the holders of reproduction rights; this norm is binding on Member States that have introduced the exceptions in question. Thirdly, and lastly, a series of norms derived from the case-law of the Court and defining the rules on which the fair compensation system should be based. Member States are not obliged, therefore, to implement the exceptions provided for in Article 5(2)(a) and (b) of Directive 2001/29 in their national laws. If they do so, however, then they are obliged to introduce the fair compensation referred to in those provisions and are bound by the rules concerning the composition and financing of that compensation which the Court considers to arise from the provisions in question.

25.These include rules of a negative nature, which the Court established in the judgment in Hewlett-Packard Belgium specifically with respect to the method of collecting the fee at issue in Belgium. According to that judgment, it is not permissible to finance the fair compensation referred to in Article 5(2)(a) and (b) of Directive 2001/29 by means of remuneration collected in two forms – as lump-sum remuneration and proportional remuneration – where the lump-sum remuneration is calculated solely by reference to the speed at which the device concerned is capable of producing copies, the proportional remuneration recovered after the fact varies according to whether or not the person liable for payment has cooperated in the recovery of that remuneration, and the combined system, taken as a whole, does not include mechanisms, in particular for reimbursement, which allow the complementary application in respect of different categories of users of the criterion of actual harm suffered and the criterion of harm established as a lump sum. (16) The characteristics of the fee described above correspond to those of the fee at issue. It is those norms, derived from the Court’s interpretation of Article 5(2)(a) and (b) of Directive 2001/29, that Copaco is relying on, and it is the direct effect of those norms that is the subject of the fourth question referred for a preliminary ruling.

26.The unconditional nature of the above norms for a Member State that has introduced exceptions to the reproduction right provided for in Article 5(2)(a) and (b) of Directive 2001/29 is beyond doubt. The question remains whether those norms are precise enough to be considered to have direct effect.

27.When assessing the norms of EU law in terms of their sufficiently precise nature, the Court examines the group of entities that have rights and obligations under those norms and the content of the rights that arise from them. (17) Let me start with this last point.

28.The legal norms in question mean that Member States are prohibited from establishing a fee intended to finance the fair compensation provided for in Article 5(2)(a) and (b) of Directive 2001/29 with the characteristics described in paragraph 4 of the operative part of the judgment in Hewlett-Packard Belgium. The Court has already found in the judgment in van Gend & Loos that such a prohibition, that is to say, an obligation on a Member State not to act, may be a source of positive rights for individuals. (18)

29.With regard to the fee intended to finance fair compensation, individuals have the right not to bear the financial burden of that fee if it is collected in contravention of the principles arising, in accordance with the Court’s case-law, from Article 5(2)(a) and (b) of Directive 2001/29. (19) It is true that in its existing case-law, the Court has stressed that the system of fair compensation must include the right to reimbursement of an unduly collected fee intended to finance that compensation. However, in my view it is clear that individuals have the right to refuse to pay such a fee where payment has not yet occurred, while the inconsistency between the national system establishing fair compensation and the aforementioned provisions of Directive 2001/29 clearly follows from the Court’s existing judgment and has been confirmed by the judgments of national courts. Indeed, in such circumstances, forcing the entity concerned to pay such a fee and then wait for its reimbursement would be illogical and would make it excessively difficult for that entity to exercise its rights under EU law.

30.It must therefore be considered that the provisions of Article 5(2)(a) and (b) of Directive 2001/29, as interpreted in the judgment in Hewlett-Packard Belgium, establish an unconditional and sufficiently precise right for individuals to refuse to pay a fee intended to finance the fair compensation provided for in those provisions if that fee has characteristics such as those listed in paragraph 4 of the operative part of that judgment.

31.As for the group of entities entitled to such refusal, this is also precisely defined and includes any entity liable for the aforementioned fee. Identifying the obliged entity does not raise any doubts either, since it is the Member States that have the right, under Article 5(2)(a) and (b) of Directive 2001/29, to introduce in their legal orders exceptions to the reproduction right provided for therein, and it is they who are also obliged to establish fair compensation and a system for financing the compensation in that regard. Therefore, Member States are also necessarily subject to all obligations, both positive and negative, related to the organisation of such a system and arising from the Court’s case-law, including the prohibition on charging fees that do not comply with the aforementioned provisions of Directive 2001/29.

32.In the present case, the incompatibility with Article 5(2)(a) and (b) of Directive 2001/29 of the Belgian regulations establishing the fee at issue, in the wording applicable to the main proceedings, was clear from the judgment in Hewlett-Packard Belgium, which resulted in those regulations being amended. Thus, those provisions of the directive, taking into account their interpretation by the Court, are sufficiently precise and unconditional to find the national provisions to be incompatible with them. (20) Therefore, as Copaco rightly argues, the referring court should disapply those national provisions and find Reprobel’s claim based on them to be unfounded.

Reply to questions

33.In view of the above, the answer to the fourth and fifth questions should, in my opinion, be that Article 5(2)(a) and (b) of Directive 2001/29 has direct effect, such that an individual may rely on it before a national court to avoid payment of the charge in respect of fair compensation where that charge is collected on the basis of national legislation which is inconsistent with those provisions of Directive 2001/29, including the Court’s case-law concerning their interpretation.

34.In the context of the main proceedings, this obviously necessitates the conclusion that Reprobel can be considered an emanation of the Belgian State, which brings us to the analysis of the first three questions referred.

The first, second and third questions

35.By raising the first, second and third questions referred, which I propose to consider together, the referring court is essentially seeking to determine whether individuals may rely directly on provisions of EU law to preclude the application to them of national provisions incompatible with that law vis-à-vis an entity entrusted by the Member State to collect charges in order to finance fair compensation within the meaning of Article 5(2)(a) and (b) of Directive 2001/29 and to pay that compensation to the rightholders, and which has special powers enabling it to perform its tasks.

36.In the main proceedings, it is common ground that Reprobel is not a body of the Belgian State. However, according to the Court’s settled case-law, individuals can rely directly on provisions of EU law not only against Member States and their bodies in the strict sense, but also, in particular, against entities that perform tasks in the public interest and have special powers beyond those which result from the normal rules applicable in relations between individuals. (21) Moreover, it is not required that those entities be subject to the authority or control of the State. (22)

37.A detailed analysis of those criteria was recently conducted by Advocates General E. Sharpston (23) and N. Emiliou. (24) While their theoretical discussion of the subject is very interesting, I will not repeat it here, but instead refer you to their Opinions. Here I shall restrict myself to matters pertaining to the special circumstances of the present case.

Tasks in the public interest

38.Reprobel is not a public-law entity, nor is it controlled by the Belgian State in such a way that it could be considered structurally part of it. It is therefore necessary to consider whether it performs tasks in the public interest and has special powers for that purpose beyond those which result from the normal rules applicable in relations between individuals.

39.As I mentioned earlier, it is the Member States which are entitled, under Article 5(2)(a) and (b) of Directive 2001/29, to introduce in their legal orders exceptions to the reproduction right provided for therein, and it is they who are also obliged to establish fair compensation and a system for financing it in that regard. (25) The Court has ruled that, in principle, the economic burden of that financing should be borne by final users who have been granted rights under those exceptions. However, in view of the practical difficulty of identifying those users, it is open to the Member States to establish a system whereby the burden falls on the manufacturers or distributors of devices and media that allow works and other subject matter protected by reproduction rights to be copied, or on the providers of reproduction services, who pass on the financial burden to the final users, presumably in the price of the devices and media or services concerned. (26)

40.In that context, it should also be noted that the harm suffered by the holders of a reproduction right is largely hypothetical, especially with regard to the exception provided for in Article 5(2)(b) of Directive 2001/29, since it would be very difficult for the rightholders to assert that right with respect to the users’ private activities which the latter consider to be a natural way of using a legally acquired copy of a work. Therefore, the introduction of exceptions to that right is an element of public policy. Under that policy, the State, on the one hand, legalises activities that users would engage in anyway, regardless of whether they are legal or not, given the low probability of their detection and prosecution. On the other hand, it provides the rightholders with income that would usually be very difficult to obtain directly from users.

41.

The fee charged in this manner has the character of a public-law charge on copying devices and media – it is borne by all purchasers of such devices and media or services who have been granted rights under the exceptions provided for in Article 5(2)(a) and (b) of Directive 2001/29. (27) Thus, its collection does not depend on whether the users actually take advantage of those exceptions. Indeed, as the Court has ruled, users must be deemed to take full advantage of their rights in that regard. (28) On the other hand, Member States that set the amount of the fee on devices and media are obliged to set it at such a level that the revenues from it compensate for the actual harm that the copyright and related rights holders suffer from those exceptions. (29)

42.What we are dealing with, therefore, is not a reciprocal performance between final users and rightholders, but rather an erga omnes regulation, according to which each person covered by the exceptions in question has the right to perform the activities covered by the exceptions provided for in Article 5(2)(a) and (b) of Directive 2001/29, while the rightholders are compensated for the harm they have suffered, which is calculated as a lump sum and financed from the fees paid by all purchasers of copying devices and media or users of reproduction services who benefit from the exceptions in question. The collection of such fees and the payment of fair compensation to the rightholders is therefore a task performed in the public interest.

43.For that reason, Reprobel’s argument that it is acting as a collective management organisation of copyright and related rights is misplaced. The company may also be acting as a collective management organisation, but this does not change the fact that by collecting the fee at issue and paying fair compensation, it is performing a task in the public interest rather than engaging in the management of exclusive rights. That is because the copyright and related right holders do not voluntarily (30) entrust it with the management of the reproduction right, since that right, to the extent covered by the exceptions in question, simply does not exist. On the other hand, users do not pay remuneration to the rightholders for the actual use of works or other protected subject matter, since that use is free of charge, but rather finance, by paying a form of indirect tax, compensation for the loss of exclusive rights by the rightholders. (31)

44.Therefore, the French government’s view that Reprobel is not performing a task in the public interest, but rather in the private interest of the copyright and related rights holders, is incorrect. The exceptions to the reproduction right provided for in the provisions of Directive 2001/29 are introduced in the public interest, as they are intended to establish a general right for natural persons to copy works and other protected subject matter for their own use without having to obtain permission from the rightholders. On the other hand, fair compensation for those rightholders is a correlative of that right and serves to maintain a proper balance between the interests at stake, which is certainly in the public interest.

45.As for the special powers of an entity such as Reprobel that go beyond those which result from the normal rules applicable in relations between individuals, such special powers are inherent in the very right to demand that manufacturers and distributors of copying devices and media pay the fee at issue. In relations between individuals which are based on the principle of equality of parties, a claim for payment is always associated with a specific legal event, such as a contract, tort or other event that results in a legal relationship between two or more named persons. However, the entity authorised to collect the fee at issue has, by operation of law, a claim for its payment against any person who is included in the abstractly defined group of obliged persons. It therefore exercises ius imperium.

46.It is important to distinguish the situation of such an entity from that of the aforementioned manufacturers and distributors, who are only capable of passing on the financial burden of the fee in question to their customers, by way of a contract, in the price of the devices and media they sell. Similarly, any seller of any commodity has, subject to market conditions of course, the possibility of offsetting its costs for manufacturing or acquiring that commodity as well as for public-law charges, including, in particular, indirect taxes, through the price of that commodity. Thus, in so far as those manufacturers and distributors participate in performing the public-interest task at issue here, from a legal point of view they are only acting as entities obliged to make certain payments and do not have any special powers beyond those which result from the normal rules applicable in relations between individuals.

47.The fact, raised by Reprobel and the Belgian government, that it is not Reprobel but the public authorities that set the amount of the fee at issue is irrelevant here. Performing tasks in the public interest does not mean that the entity performing those tasks determines, independently and comprehensively, all aspects of those tasks or that its special powers must be discretionary. On the contrary, the performance of entrusted tasks by definition implies that the party that entrusts them defines the limits of the actions of the party executing those tasks. The fact that the freedom of action of an entity performing tasks in the public interest is limited by a public authority further confirms that the entity is acting on behalf of the State and is an emanation of the State within the meaning of the Court’s case-law on the direct effect of EU law.

48.That argument, moreover, is double-edged, for if Reprobel were to be considered as nothing more than an automatic enforcer of the laws laid down by the Belgian State without any powers of its own in that regard, it would be yet another argument in favour of considering the dispute in the main proceedings to be a vertical one between Copaco and that State. After all, as Copaco rightly points out, it would be completely illogical if the King (read: the Belgian State) could not collect the fee at issue, and yet Reprobel, which merely carries out his orders, could.

49.The power to legally demand payment of the fee at issue is Reprobel’s special power that goes beyond the normal rules applicable in relations between individuals, a power which, in my opinion, would be sufficient in itself to recognise Reprobel as an emanation of the Belgian State. Of crucial importance here is the fact that the power derives directly from provisions of law, and not from the individual legal relationships between Reprobel and the obliged entities.

50.In order to perform the public interest task entrusted to it, Reprobel also has a number of special powers to obtain information. Firstly, it has the right to request both the entities obliged to pay the fee at issue and other entities operating in the copying device market (such as companies engaged in the maintenance of such devices) to provide any information necessary to determine the obliged entities and the amounts owed by them, and those entities are obliged to provide that information under threat of criminal sanction.

51.That power goes beyond the powers that result from the normal rules applicable in relations between individuals, as no one is ordinarily obliged to provide to third parties, under threat of sanction, information about their own, let alone someone else’s, business activities. On the contrary, such information is often protected as a business secret, and the obligation to disclose it arises only in specific situations and under specific regulations, for instance during tax investigations or accounting audits, or within the framework of a legal relationship between an individual and a specific other entity.

52.Therefore, the argument raised by the Belgian government that Reprobel’s situation should be compared to that of a bank, which can also demand extensive information about its customers’ financial situation, is misplaced. The difference lies precisely in the fact that a bank may only request such information from its customers who have voluntarily entered into, or intend to enter into, a contract with it, and the only sanction for failing to provide that information will be that the customer is unable to enter into the contract or will have it terminated. (32) No bank has the authority to request any information from persons with whom it has no legal relationship. On the other hand, manufacturers and distributors of copying devices and media are obliged to provide information to Reprobel by law, without having to enter into any legal relationship with it.

53.Likewise irrelevant is the point raised by both Reprobel and the Belgian government that Reprobel has no authority to impose sanctions on entities that fail to provide information to it. The Foster test does not require an entity performing a task in the public interest to have all the powers normally vested in State authorities, including the right to impose sanctions. According to the information contained in the request for a preliminary ruling, failure to comply with information obligations to Reprobel may result in criminal sanctions, which obviously only the courts are competent to impose. The very existence of those sanctions, however, demonstrates the special nature of Reprobel’s powers.

54.Secondly, Reprobel is authorised to seek information necessary for the performance of its tasks from customs authorities, tax authorities, and social security offices. That power, too, goes beyond the powers that result from the normal rules applicable in relations between individuals. Indeed, even under the most transparent conditions, individuals are not able to seek information about other individuals from such bodies, except for information that is in principle public, such as registration for value added tax. Such information, however, would not be sufficient for the task entrusted to Reprobel, and thus we must be dealing with information that is more far-reaching, such as the volume of imports of copying devices or media, or the turnover of manufacturers or distributors of such devices and media. Public authorities do not provide such information to entities that do not have special powers.

55.Therefore, the arguments of the French government that Reprobel’s right to seek information from public authorities does not concern its relationship with the entities obliged to pay the fee at issue, as required by the judgment in Foster, are once again unfounded. Firstly, neither the judgment in Foster nor the subsequent case-law of the Court require that the special powers of an entity performing tasks in the public interest must concern, strictly and exclusively, that entity’s direct relations with the individual. Those powers are to be granted to that entity for the purpose of performing the task entrusted to it in the public interest. (33) Secondly, it cannot be seriously argued, as the French government does, that Reprobel’s right to seek information from customs and tax authorities relates to Reprobel’s relationships with those authorities rather than with the entities obliged to pay the fee at issue. Reprobel has the right to obtain information not about its own tax or customs situation, but about the activities of the obliged entities, and it obtains that information in order to determine the amount of the fee at issue that is due from them. Therefore, the right clearly concerns its relationship with those entities.

56.The above considerations lead to the conclusion that Reprobel meets the so-called Foster test, as it performs a task in the public interest and has special powers for that purpose beyond those which result from the normal rules applicable in relations between individuals.

57.That conclusion can be generalised. The introduction into national law of exceptions to the reproduction right provided for in Article 5(2)(a) and (b) of Directive 2001/29 is an action by the State in the public interest, namely in the interest of all users of works and other subject matter protected by that right who are natural persons. It is also an action in the public interest to pay fair compensation to the rightholders, as provided for in the directive, and to organise a system for financing that compensation, including, in particular, through a fee or other charge collected from manufacturers or distributors of devices and media that makes it possible to take advantage of those exceptions to the reproduction right. Accordingly, the entity entrusted with collecting such a charge and paying fair compensation to the rightholders performs a task in the public interest. To that end, the entity must necessarily have special powers beyond those which result from the normal rules applicable in relations between individuals, beginning with the right to demand payment of such a charge. (34) In a dispute with such an entity, individuals may therefore rely directly on EU law and demand that national laws which are incompatible with EU law be disapplied.

Therefore, the answer to the first, second and third questions should, in my opinion, be that individuals may rely directly on provisions of EU law to preclude the application to them of national provisions incompatible with that law vis-à-vis an entity that is entrusted by the Member State to collect charges in order to finance fair compensation within the meaning of Article 5(2)(a) and (b) of Directive 2001/29 and to pay that compensation to the rightholders, and which has special powers enabling it to perform its tasks.

Conclusions

59.In light of all of the above considerations, I propose that the following response be given to the questions referred for a preliminary ruling by the Ondernemingsrechtbank Gent Afdeling Gent (Ghent Business Court, Ghent Division, Belgium):

(1) Article 5(2)(a) and (b) 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 has direct effect, such that an individual may rely on it before a national court to avoid payment of the charge in respect of fair compensation where that charge is collected on the basis of national legislation which is inconsistent with those provisions of Directive 2001/29, including the Court’s case-law concerning their interpretation.

(2) Individuals may rely directly on provisions of EU law to preclude the application to them of national provisions incompatible with that law vis-à-vis an entity that is entrusted by the Member State to collect charges in order to finance fair compensation within the meaning of Article 5(2)(a) and (b) of Directive 2001/29 and to pay that compensation to the rightholders, and which has special powers enabling it to perform its tasks.

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Original language: Polish.

See the recent judgment of 11 April 2024, Gabel Industria Tessile and Canavesi (C‑316/22, EU:C:2024:301) and the Opinion of Advocate General Emiliou in that case (C‑316/22, EU:C:2023:885).

OJ 2001 L 167, p. 10.

Belgisch Staatsblad of 27 July 1994, p. 19297.

Belgisch Staatsblad of 7 November 1997, p. 29874.

Belgisch Staatsblad of 7 November 1997, p. 29873.

Judgment of 12 November 2015 (C‑572/13, ‘the judgment in Hewlett-Packard Belgium’, EU:C:2015:750).

The judgment in Hewlett-Packard Belgium, paragraph 4 of the operative part.

Judgment of 5 February 1963 (26/62, EU:C:1963:1).

Judgment of 4 December 1974 (41/74, EU:C:1974:133).

Judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraphs 17 to 19).

Judgment of 9 February 2012, Luksan (C‑277/10, EU:C:2012:65, paragraph 106).

Judgment of 21 October 2010, Padawan (C‑467/08, EU:C:2010:620, paragraph 42).

Judgment of 16 June 2011, Stichting de Thuiskopie (C‑462/09, EU:C:2011:397, paragraph 29).

See, to that effect, judgments of 22 September 2016, Microsoft Mobile Sales International and Others (C‑110/15, EU:C:2016:717, paragraph 59) and of 6 September 2018, Hampshire (C‑17/17, EU:C:2018:674, paragraphs 58 to 60).

The judgment in Hewlett-Packard Belgium, paragraph 4 of the operative part.

See, inter alia, the judgment in Hewlett-Packard Belgium, paragraphs 85 to 87, as well as judgment of 22 September 2016, Microsoft Mobile Sales International and Others (C‑110/15, EU:C:2016:717, paragraphs 37, 54 and 55).

To be more precise, the condition for the application of those provisions has been met, as the Kingdom of Belgium has introduced in its national law the exceptions to the reproduction right provided for therein.

See the judgments of 12 July 1990, Foster and Others (C‑188/89, ‘the judgment in Foster’, EU:C:1990:313, paragraph 20), and of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraphs 33, 34). This is the so-called ‘Foster test’.

See the judgment of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraphs 27 to 29).

Opinion of Advocate General Sharpston in Farrell (C‑413/15, EU:C:2017:492, points 35 to 54 and 130 to 147).

Opinion of Advocate General Emiliou in Gabel Industria Tessile and Canavesi (C‑316/22, EU:C:2023:885, points 33 to 47).

Point 31 of the present Opinion.

The judgment in Hewlett-Packard Belgium, paragraphs 69 and 70 and the case-law cited.

In that regard, the scope of application of Article 5(2)(a) of Directive 2001/29 differs from that of Article 5(2)(b) thereof. The exception under letter (b) only applies to natural persons making reproductions for private use, while the exception under letter (a) covers all categories of users and reproductions for any purpose (see the judgment in Hewlett-Packard Belgium, paragraphs 30 to 34).

See, to that effect, the judgment in Hewlett-Packard Belgium, paragraphs 36 and 85 and the case-law cited.

The judgment in Hewlett-Packard Belgium, paragraph 72 and the case-law cited.

Or even compulsorily, as is sometimes the case when the law provides for mandatory collective management.

Who suffer harm because of the exceptions to the exclusive right in question, which is not the case where that right is exploited on a paid basis (see, most recently, the judgment of 8 September 2022, Ametic, C‑263/21, EU:C:2022:644, paragraph 68).

Providing false information can be treated as fraud and may result in civil or criminal liability. Nevertheless, the obligation to provide information arises from the legal relationship between the customer and the bank.

The judgment in Foster, paragraph 20.

See, to that effect, the judgment of 8 September 2022, Ametic (C‑263/21, EU:C:2022:644, paragraphs 68 to 72).