Referral C-227/23 (Kwantum Nederland and Kwantum België, 11 Apr 2023)

1. Does the situation at issue in these proceedings fall within the material scope
of EU law?
Should the preceding question be answered in the affirmative, the following
questions are also submitted.
2. Does the fact that copyright on a work of applied art forms an integral part
of the right to protection of intellectual property enshrined in Article 17(2) of the
Charter mean that EU law, in particular Article 52(1) of the Charter, in order to
limit the exercise of copyright (within the meaning of Directive 2001/29/EC) on a
work of applied art by application of the material reciprocity test of Article 2(7)
BC, requires this limitation to be provided for by law?
3. Must Articles 2, 3 and 4 of Directive 2001/29/EC and Articles 17(2) and
52(1) of the Charter, read in the light of Article 2(7) BC, be interpreted as
meaning that it is solely for the EU legislature (and not for national legislatures) to
determine whether the exercise of copyright (within the meaning of Directive
2001/29/EC) in the European Union can be limited by application of the material
reciprocity test provided for in Article 2(7) BC in respect of a work of applied art
whose country of origin within the meaning of the Berne Convention is a third
country and whose author is not a national of an EU Member State and, if so, to
define that limitation clearly and precisely (see judgment of 8 September 2020,
Recorded Artists Actors Performers, C-265/19, EU:C:2020:677)?
4. Must Articles 2, 3 and 4 of Directive 2001/29/EC, read in conjunction with
Articles 17(2) and 52(1) of the Charter, be interpreted as meaning that as long as
the EU legislature has not provided for a limitation of the exercise of copyright
(within the meaning of Directive 2001/29/EC) on a work of applied art by
application of the material reciprocity test of Article 2(7) BC, EU Member States
may not apply that test in respect of a work of applied art whose country of origin
within the meaning of the Berne Convention is a third country and whose author is
not a national of an EU Member State?
5. In the circumstances at issue in the present proceedings and given the time
of the establishment of (the predecessor of) Article 2(7) BC, are the conditions of
the first paragraph of Article 351 TFEU satisfied for Belgium, meaning that
Belgium is therefore free to apply the material reciprocity test provided for in
Article 2(7) BC, taking into account the fact that in the present case the country of
origin acceded to the Berne Convention on 1 May 1989?