Referral C-230/23 (Reprobel, 13 Apr 2023)

Is an entity such as REPROBEL, in so far as it has been entrusted by the State, by
means of a royal mandate, to collect and distribute the fair compensation, set by
the State, within the meaning of Article 5(2)(a) and (b) of Directive 2001/29, and
over which the State exercises control, an entity against which an individual may
rely, in his or her defence, on the incompatibility with EU law of a national
provision which that entity seeks to impose on that individual?
Is it relevant to the answer to that question that the control exercised by the State
over that entity includes:
o The obligation for that entity to always forward to the competent
minister a copy of the requests for data it sends to the persons liable to
pay the remuneration, required both for the collection and distribution
of the remuneration for reprography, in such a way that the minister is
in a position to know how the entity exercises the right of supervision
and decide whether it is advisable to stipulate, by means of a
ministerial decree, the content, number and frequency of the requests
for data in such a way as not to impede, more than is necessary, the
activities of the persons receiving those requests;
o The obligation for the entity to call upon the minister’s representative
to send a request for data, required for the collection of the
proportional remuneration for reprography, to the persons liable to pay
the remuneration, the dealers, whether wholesalers or retailers, the
leasing companies or equipment maintenance companies if the person
liable to pay the remuneration has not cooperated in the collection, on
the understanding that the entity also has the obligation to send a copy
of this request to the competent minister in such a way that the latter
can determine that the content, number and frequency of the requests
do not impede, more than is necessary, the activities of the persons
receiving those requests;
o The obligation for the entity to submit to the competent minister for
approval the rules for the distribution of reprography remuneration and
any amendment it makes to them;
o The obligation for the entity to submit the declaration form it has
prepared to the competent minister for approval, without which it
cannot be issued.
Is it also relevant to the answer to the question referred that the entity has the
following powers?
o The power to request all data necessary for collecting the remuneration
for reprography from all persons who are liable to pay the
remuneration, liable to pay a contribution, dealers, whether
wholesalers or retailers, leasing companies and equipment
maintenance companies. Every request must always state the criminal
penalties applicable in the event of failure to comply with the time
limit set or provision of incomplete or inaccurate information;
o The power to require all persons liable to pay remuneration to provide
all data relating to copied works necessary for the distribution of the
remuneration for reprography;
o The power to obtain all information necessary for the performance of
its task from the Administratie der Douane en Accijnzen (Belgian
Customs and Excise), the Administratie van de btw (Belgian VAT
Administration) and the Rijksdienst voor Sociale Zekerheid (Belgian
National Office for Social Security).
Does Article 5(2)(a) and (b) of Directive 2001/29 have direct effect?
Is a national court required, on the application of an individual, to disapply a
national provision where that provision, imposed by the State, contravenes
Article 5(2)(a) and (b) of Directive 2001/29, referred to above, in particular
because that provision, contrary to the aforementioned article, obliges that
individual to pay charges?