CJEU has received first reference on DSM Directive

The Belgian litigation, initiated in July 2021, concerns a dispute between the musicians of the Belgian National Orchestra (ONB) and the ONB itself. Between 2016 and 2020, the labour unions of the ONB musicians and the ONB unsuccessfully tried to negotiate a collective agreement. This collective agreement would set the amount of remuneration due to the ONB musicians for the communication to the public, reproduction and distribution of their performances.

When the negotiations failed, the ONB turned to the Belgian government, asking it to issue a Royal Decree that would set the amount of remuneration due to ONB musicians. The labour unions of the ONB musicians contested the draft Royal Decree.

The Royal Decree concerning the related rights of artistic staff of the ONB was finally adopted and published in the Belgian Official Journal on 4th June of 2021. Under the Royal Decree, the ONB musicians transfer their communication to the public, reproduction and distribution rights to the ONB, in exchange for remuneration, the amount of which is set by the Royal Decree.

Though the Royal Decree was adopted before the final transposition date for the DSM Directive (7th of June 2021) and before Belgium actually transposed the Directive in 2022, the preamble to the Royal Decree does cite the Directive as one of its sources.

On 26th of July 2021, several ONB musicians challenged the Royal Decree before the Belgium’s Supreme Administrative Court (Conseil d’Etat). Plaintiffs argued that their rights as performers may be transferred individually or collectively, but performers may not be forced to transfer their rights by operation of law. This would be contrary to arts. XI.203 to XI.205 of the Belgian Code of Economic Law (that regulates rights of performers), Belgian Constitution, art. 17 of the Charter of Fundamental Rights of the European Union, as well as several other acts. At a later stage of the proceedings, plaintiffs also argued that this runs contrary to EU copyright directives.

ONB, which joined the proceedings, alleged that the transfer under the Royal Decree is allowed under art. XI.205/4 of the Belgium’s Code of Economic Law (as in force prior to the 2022 reform to implement Directive (EU) 2019/790). This is because ONB musicians have the status of “agents statuaires”, a figure close to civil servants, and their rights shall be primarily governed by a statute. The Royal Decree acts as such a statute for the purposes of regulating the ownership and remuneration due for related rights.

According to ONB musicians, such an interpretation would entail discrimination of statutory performers, as opposed to performers with ordinary employment contracts. As such, it would be contrary to EU copyright directives.

Under these circumstances, the Conseil d’Etat has decided to stay the proceedings and send the following two questions to the CJEU [unofficial translation from French by this Kat]:

1. Shall arts. 18 to 23 of [Directive (EU) 2019/790] be interpreted as precluding the transfer, by regulatory means, of the related rights of statutory agents for acts carried out in the field of the employment relationship?
2. If so, shall the notions of “acts concluded” and “acquired rights” in Article 26(2) of [Directive (EU) 2019/790] be interpreted as being applicable in particular to the transfer of related rights carried out by means of a regulatory act adopted before June 7, 2021 [the Directive’s transposition deadline]?

In parallel, the Conseil d’Etat has also sent a request to the Belgian Constitutional Court, so as to inquire on the constitutionality of the Royal Decree. This makes it the second case on remuneration of authors and performers to reach the Belgian Constitutional Court this year.