The request for a preliminary ruling was made by the Council of State in Belgium with a decision dated 31 August 2023, which was received by the Court on 15 September 2023, in the context of the case F.T., A.L., O.N. v. État belge, with the National Orchestra of Belgium as the intervening party.
The request was submitted within the framework of a legal dispute between, on the one hand, F.T., A.L., and O.N., musicians employed under a public law employment contract by the National Orchestra of Belgium, and, on the other hand, the Belgian State, regarding the legality of the Royal Decree of 1 June 2021 on the neighboring rights of the artistic personnel of the National Orchestra of Belgium (Moniteur belge of 4 June 2021, p. 56936). It concerns the interpretation of Articles 18 to 23 and Article 26(2) of Directive (EU) 2019/790.
Specifically, prior to the adoption of the Royal Decree of 1 June 2021, the exploitation of the neighboring rights of the musicians of the National Orchestra of Belgium was subject to negotiations, on a case-by-case basis, within the framework of a consultation committee. Between 2016 and 2021, the National Orchestra of Belgium and the trade union representatives of the orchestra’s musicians conducted negotiations to reach an agreement on the fair remuneration to be paid by the National Orchestra for the services of those musicians. These negotiations did not result in an agreement, and in May 2021, a “protocol of disagreement” was drawn up and signed, and the Belgian State issued the Royal Decree of 1 June 2021. According to the preamble of the Royal Decree, for the smooth operation of the National Orchestra of Belgium, all rights related to the performance and exploitation of the services of its performers or artists must be transferred to it. To this end, Article 2 of the Royal Decree stipulates that the performer or artist transfers to the National Orchestra of Belgium the neighboring rights related to the services they provide in the course of their duties within the orchestra. According to Article 3 of the same Royal Decree, the rights of public presentation as well as reproduction and distribution are transferred, in exchange for the compensation specified in Articles 4 and 6 of the decree, for the entire duration of the neighboring rights and on a global scale.
In a document filed on 26 July 2021 before the Conseil d’État (Council of State, Belgium), the applicants F.T., A.L., and O.N. requested the annulment of the Royal Decree of 1 June 2021, arguing, among other things, that its provisions contravened Union law.
The Court of Justice ruled that:
Article 2(b) and Article 3(2)(a) of Directive 2001/29/EC, as well as Article 3(1)(b), Article 7(1), Article 8(1), and Article 9(1)(a) of Directive 2006/115/EC, must be interpreted as meaning that they oppose a national regulation that provides for the transfer, through a regulatory act, of neighboring rights for the exploitation by the employer of the rights of performers or artists employed under public law contracts for the services they provide as part of their duties within the employer’s service, without their prior consent.
See the CJEU decision here.