The CJEU’s Unintelligible Impairment of the Financial Health of EU Performers: Ever-Increasing Suspense in Neighbouring Rights

With the RAAP ruling in 2020, the Court of Justice of the European Union (CJEU) delivered a judgment with a far-reaching impact, both on the autonomy of Member States within the making of reservations under international treaties, and on revenues for collecting societies and neighbouring rightsholders in the EU. The controversial part of the judgment states that entering reservations on the granting of equitable remuneration for neighbouring rights on the basis of international treaties should only take place at EU level. This effectively leaves no autonomy to Member States within the principle of reciprocity, contrary to former popular belief by many Member States and scholars. The US has entered reservations with regard to EU countries under Art. 15(3) WIPO Performances and Phonograms Treaty (WPPT), thus no remuneration is disbursed for performances by EU artists in the US. Due to the US repertoire’s large presence in the EU, the latter’s performers will be left with a considerably smaller share of the revenues to be distributed by EU collecting societies. The European Commission must urgently finish the ongoing research and consultation on RAAP. Right now, too many requests by interest groups remain unanswered. The recommended (and hoped for) route is for the EU to invoke the principle of reciprocity and enter reservations for other WPPT parties that have entered such reservations with regard to EU countries. An extensive arrangement regarding reservations is necessary, also regarding situations where the relationship between fundamental rights and reciprocity provisions is currently unknown.