C-575/23: statutory assignment of rights without prior consent is against EU law

The legal dispute between the Belgian National Orchestra (ONB) and its musicians began in 2021, after five years of unsuccessful negotiations for a collective agreement on musicians’ remuneration. On June 4, 2021, the Belgian government issued a Royal Decree, which mandated the assignment of musicians’ right of communication to the public, reproduction and distribution rights to the ONB in exchange for remuneration set by the decree. According to the government, this was justified as the ONB musicians are statutory agents, a status similar to that of civil servants.

ONB musicians actively opposed this decree, including through a memorandum of disagreement signed prior to the decree’s adoption. In July 2021, several ONB musicians challenged the decree before the Supreme Administrative Court. They argued that the forced statutory assignment of their rights violated various legal provisions, including the Belgian Code of Economic Law (where the EU copyright acquis is transposed) and the EU Charter of Fundamental Rights.

The Supreme Administrative Court sent a request to the CJEU to clarify whether: (1) such unilateral assignment of performers’ rights by ways of a statutory act would be contrary to Arts. 18 to 23 of Directive (EU) 2019/790; and (2) whether the Directive is as such applicable to the Royal Decree adopted before June 7, 2021, this being the deadline for the national transpositions of the Directive.

In early November 2024, Advocate General (AG) Szpunar issued his Opinion on the matter [see The IPKat here for a more detailed overview]. First, the AG suggested that the questions should be reformulated also to address the compatibility of the decree with Directives 2001/29 and Directive 2006/115/EC, where the performers’ exclusive rights are laid down.

The AG then proposed the CJEU to answer that a statutory assignment of performers’ rights without a prior consent of those performers or of their representatives is contrary to Directives 2001/29 and 2006/115. With regard to applicability of Arts. 18 to 23 Directive 2019/790, the AG opined that they are applicable to statutory agents and to acts of exploitation (such as performances) occurred after June 7, 2021, even if they are governed by a contract concluded prior to that date.

The CJEU essentially agreed with the AG on all points. The Court reformulated the questions so as to address the compatibility of the Royal Decree not only with Arts. 18-23 Directive 2019/790, but also with Arts. 2(b) and 3(2)(a) of Directive 2001/29, and Arts. 3(1)(b), 7(1), 8(1) and 9(1)(a) of Directive 2006/115.

Directive 2019/790 is applicable to performances carried out after June 7, 2021, even when they are regulated by a contract [or, in this case, by a decree] signed prior to this date. While a new rule of law does not have retroactive effect, ‘it does apply to the future effects of a situation which arose under the old rule and to new legal situations also’ (para. 72). According to the court, this is needed to safeguard the Directive’s effectiveness and intended objective (that of protecting performers in the event of rights’ transfer).

Directives 2001/29, 2006/115 and 2019/790 are applicable to any kind of performer, including those engaged under an administrative law statute.

The concept of ‘performer’ is an autonomous concept of EU law and shall be given uniform interpretation throughout the EU. It includes those performers who are engaged under an administrative law statute. This interpretation is supported by the wording of the relevant provisions, the context of those provisions (including relevant international law), as well as the objectives pursued by the three Directives.

Moreover, the concept of ‘contract’ under Directive 2019/790 shall be understood broadly to include any licensing of exploitation or transfer of exclusive rights.

The Court analysed whether an assignment of rights such as that effected by the Royal Decree is precluded by the provisions on performers’ exclusive rights in Arts. 2(b) and 3(2)(a) of Directive 2001/29, and Arts. 3(1)(b), 7(1), 8(1) and 9(1)(a) of Directive 2006/115.

Statutory assignment of the ONB musicians’ rights without their prior consent would amount to a general compulsory assignment of all the related rights of a category of performers. It is clear to the Court that the performers involved in the national proceedings did not give their prior consent: quite to the contrary, they signed a memorandum of disagreement with the Royal Decree. This is against the provisions of Directive 2001/29 and 2006/115, as performers’ rights shall be interpreted broadly and be regarded as being preventive in nature. Such statutory assignment of rights without prior consent also goes against the principle of appropriate and proportionate remuneration under Art. 18(2) Directive 2019/790.

At the same time, it is up to the Member States to define the methods for granting that consent, including through individual or collective negotiations, or through a regulatory act in the case of statutory agents.

For this Kat, this ruling has two main take-aways: the construction of prior consent and the applicability of Directive 2019/790.

First, the Court underlined, in para. 125, that the claimants in the national proceedings had already been engaged by the ONB when the Royal Decree was adopted. It also confirmed that statutory assignment with a prior consent is not against EU law, while Member States have leeway in establishing methods for granting such consent (para. 123). Building on this, Belgian authorities could still construe ONB’s hiring procedures in a way that the Royal Decree is applicable to the future hires.

Second, the Court ruled that Arts. 18-23 Directive 2019/790 are applicable to all acts of exploitation that took place after June 7, 2021 (including when they are governed by the contracts signed prior to that date). Indeed, this view had already been expressed elsewhere and also followed by most Member States during the transposition period. However, Belgium had to amend its implementing legislation in 2024 to insert a corresponding clarification.

Most importantly, the CJEU indicated that Arts. 18-23 can be invoked by all categories of artists and performers, including those under an employment contract. This confirms that mechanisms such as the right to receive information on the revenues generated by the use of a work (Art. 19) or the right to revoke the assignment of rights (Art. 22) are also available to employees.