Completing the liberalisation of collective management (LEA ./. Jamendo case)

In the case we intend to comment on in this post, the opinion of Maciej Szpunar, Advocate General (AG) in case C-10/22, Liberi editori e autori (LEA) v Jamendo, was published on 25 May 2023. The case focuses on settling the interpretative doubts raised by the Tribunale ordinario di Roma on the compliance of Italian law with Directive 2014/26/EU, given that Italy retains a reservation of collective rights management activities in favour of traditional collecting societies.  It should be recalled that the aforementioned European directive liberalised the market for collective management of intellectual property rights and introduced the so-called “independent management entities” (IMEs), in order to give a competitive boost to the European market, traditionally dominated by monopoly-based and territorial collective management organisations (CMOs). 

Sometimes, we jurists are very critical (perhaps too critical) of the difficult work carried out by the Court of Justice of the European Union (CJEU) when it comes to resolving the so-called “preliminary rulings” that are submitted to it: we accuse the court of wanting to legislate “ex post” far beyond the regulation or of issuing unreasonable or even unjust rulings. However, we often forget the committed role played by this European judicial body, especially with regard to the so-called preliminary rulings, in which the legal controversy is limited by its standard-setting and consultative work, which is limited to resolving doubts about the validity or correct interpretation of EU law that are submitted to it by judges or courts of a particular member state. In the specific case we are analysing, there are certain peculiarities: the same Italian court had already referred the same question to the CJEU five years ago, in Case C-781/18, which was settlued due to the interest of the parties to that case, SIAE and Soundreef Ltd. On the other hand, as it appears from the background described in the AG’s opinion, there is a paradoxical situation in which the plaintiff defends an interpretation of EU law that coincides with that of the defendant and which, if accepted, would lead to the dismissal of the action, so that it would seem legitimate to question -as the Italian Government, which alleged the “fictitious and artificial nature” of the dispute, apparently did- the motivations of the applicant’s procedural actions.  

In any case, and as far as the substance of the case is concerned, AG Maciej Szpunar does no more than confirming that the liberalisation process must be completed to its logical conclusion and that, therefore, the privileged reservation that Italian law retained in favour of the CMOs and the consequent exclusion of the IMEs are not sustainable, as they contravene EU law. It reached this conclusion, as can often be the case, by a different route from the one proposed to it. In fact, the AG is of the opinion that if the issue were to be addressed on the basis of Directive 2014/26/EU alone, his conclusion would be that Italian law is in line with EU law; an interpretation that we obviously do not share, but it does account for the serious and devastating effects that the litigation brought by LEA -who apparently opposed the preliminary ruling– could have had. Fortunately, the AG straightens the course and, on the basis of other rules than the one whose interpretation is proposed to him (Directive 2000/31 on electronic commerce, Directive 2006/123 on services in the internal market, and the freedom to provide services counatined in Article 56 of the Treaty on the Functioning of the EU), he concludes that the exclusion of IMEs from the activity of collective management is not in line with European law. 

As is often said in these cases, in a very high percentage of cases the CJEU usually confirms the opinion formulated by the AG. Therefore, we can only hope for a decision proposing a uniform interpretation that consolidates the complete liberalisation of the collective management market, initiated as a result of Directive 2014/26/EU. 

Eric Jordi, Business & Legal Affairs at Unison.