Joris DeeneMany hotel and B&B operators struggle with the question of whether they should pay royalties to collective management organizations (such as Sabam) for rooms that are not rented out. In a ruling of 18 December 2025 (C-161/24) the Court of Justice of the European Union (CJEU) provides clarity. Although merely placing a television in a hotel room remains a copyrightable act , the Court considers that disregarding the occupancy rate when setting prices may, under certain conditions, constitute an abuse of a dominant position.
The facts and legal context
The case originated in the Czech Republic, where the management company OSA (the counterpart of SABAM in Belgium) collected copyright royalties for making televisions and radios available in hotels.
OSA charged a fixed amount per room, regardless of whether that room was actually rented out or stood empty. The Czech competition authority ruled that this practice constituted an abuse of a dominant position, as payment was required for a service that was not actually consumed by the public in empty rooms. OSA challenged this decision, arguing that a copyright royaltie is payable for the mere availability of the works, regardless of whether the customer turns on the TV or not.
The national court then referred questions to the Court of Justice of the EU for a preliminary ruling to clarify whether such flat rates are contrary to Article 102 TFEU (prohibition of abuse of dominant position).
The decision of the Court of Justice
The Court of Justice issued its ruling on December 18, 2025, introducing an important nuance in favor of hospitality industry operators.
The Court first confirms its established case law: placing televisions and radios in hotel rooms constitutes a “communication to the public.” In this regard, it is legally irrelevant whether the guest actually turns on the television. The hotel's service (and the copyright license) consists of offering the possibility to watch.
Although copyright royaltie is therefore payable, the price must not be excessive. The Court states that the occupancy rate of a hotel is indeed relevant in determining the economic value of the use. The economic value of the service is related to the actual number of people using the works. It is therefore, in principle, unacceptable not to take into account rooms that are inaccessible or vacant.
Specifically, the Court states:
“It therefore cannot be ruled out that the method applied by OSA to calculate the royalties, which did not take into account the occupancy rate of the hotel establishments, must be classified as ‘abuse’ within the meaning of Article 102 TFEU"
The Court formulates the decisive test as follows:
“If a method for calculation of the royalties which took account of that occupancy rate could be used at a reasonable cost and entailed a substantial reduction in the amount of the royalties, the use of the current method for calculating those royalties could be regarded as leading to unfair prices"
There is one important exception: if it is technically too difficult or financially unreasonable to keep track of the exact occupancy, a flat rate may be used. The costs for supervision and management may not increase disproportionately.
Legal analysis and interpretation
This ruling confirms a broader trend in European competition law: the protection of customers against the rigid dominant position of collective management organizations.
1. What is the economic value?
The basis for this ruling is the classic United Brands test (Case 27/76). This test determines when a price is “unfair” or “excessive” within the meaning of competition law. The key question in this test is: Is the price requested reasonably proportionate to the economic value of the service provided?
The discussion in this case revolved entirely around the interpretation of that “economic value”:
- The opinion of the Advocate General (the “capacity opinion”): The AG argued that the economic value of the license lies in the mere possibility of viewing. In his view, the occupancy rate was irrelevant to the qualification of the price, because the service is the “provision” of the service. Once the TV is in place, the service has been provided. From that perspective, a flat rate (based on capacity) is perfectly in line with United Brands.
- The correction by the Court (the “realistic view”): The Court also applies the United Brands test, but interprets “economic value” differently. The Court ruled that in the case of a copyright license, the value does not lie solely in the availability of the work, but depends on the actual number of people who can enjoy the works. A price that does not take vacancy into account is therefore not reasonably proportionate to the economic value and fails the United Brands test.
2. Confirmation of the “SABAM doctrine”
To make that economic value concrete, the Court refers back to the principles from the earlier SABAM ruling (C-372/19) and now applies it to the hotel sector as well. This doctrine now serves as the practical guide for the United Brands-test in the copyright sector.
CMO's may use flat rates (fixed amounts) for the sake of efficiency, but this should not lead to unfair outcomes. The rule is now as follows: if there is a method (such as reporting occupancy figures) that reflects actual usage more accurately than a flat rate, and this method does not cause a disproportionate increase in management costs, then ignoring that method is an indication of abuse of a dominant position.
3. The role of technology and burden of proof
A striking modern element in this ruling is the reference to technology. The Court states that the national court must take into account the “availability and reliability of the data” and the “technological tools in existence” in its assessment.
This is of great strategic importance. Whereas CMO's used to be able to argue that processing variable data was too administratively burdensome (“too much paperwork”), this argument is hardly tenable in the age of automated Property Management Systems (PMS). If a hotelier can generate a reliable occupancy report at the touch of a button, the CMO cannot reasonably refuse to do so without being guilty of unfair pricing.
4. Impact on the internal market
Finally, the Court confirms that such local tariff disputes do indeed fall under European law (Article 102 TFEU). Because management companies (such as OSA in the Czech Republic or SABAM in Belgium) also manage the rights of foreign artists and grant licenses to hotels that receive international guests, trade between Member States is affected. This opens the door for Belgian judges to apply this European case law directly.
What this means for your company in concrete terms
This ruling has direct consequences for hotels, B&Bs, and other accommodation providers in Belgium, as well as for their relationship with organizations such as SABAM, PlayRight, and SIMIM (=Unisono).
- For Hotel Operators: Are you currently paying a fixed rate per room, regardless of whether it is vacant? This ruling provides a strong legal basis for challenging or renegotiating this rate structure, especially if you have a digital system (PMS) that can easily generate occupancy reports. If a recalculation based on actual usage would significantly reduce your bill, the current pricing may be “unfair” within the meaning of competition law.
- For CMO's: Ignoring available data on actual usage is becoming riskier. Rate structures (such as Sabam tariff 114) must reflect economic reality (the value of use). The argument that counting occupancy is “too expensive” or “too complex” is less likely to hold up in court in the digital age.
- For contract practice: When drafting license agreements, a clause should now be considered that provides for periodic adjustments based on objective occupancy figures, in order to avoid infringements of competition law.
FAQ: Frequently Asked Questions
Can a collective management organization make me pay for empty hotel rooms?
Not necessarily. Although copyright royalties are payable for making works available, ignoring occupancy rates may constitute abuse of a dominant position if you can easily demonstrate your occupancy and this would lead to a lower price.
Do I have to pay copyright royalties if my hotel is closed for renovation?
According to this ruling, in principle, no. The Court explicitly states that it is not acceptable to claim compensation for rooms that are inaccessible due to renovation or seasonal closure.
Do I have to prove that my hotel guests did not watch TV?
No, that is not relevant. The important thing is whether the room was rented out. If the room is occupied, there is an “audience,” regardless of whether the guest turns on the TV. For rooms that are not rented out, there is no audience present that generates value for the hotel.
When is a price “too high” or unfair according to this ruling?
A price is unfair if it is disproportionate to the economic value of the service. The Court states that this may be the case if a calculation based on actual occupancy (at reasonable administrative costs) would result in a significantly lower rate than the current flat rate.
Can I reclaim any copyright royalties I have overpaid?
If it is established that the rates charged constitute an abuse of a dominant position, these are unduly paid. However, recovery is subject to limitation periods and you must be able to prove what the occupancy rate was during the disputed periods.
Does this ruling also apply to music in the lobby or restaurant?
No, this ruling focuses specifically on private use in hotel rooms, where occupancy directly determines whether there is a public presence. In common areas (lobby, bar), there is always a public presence as long as the establishment is open.
Conclusion
The Court of Justice's ruling C-161/24 is a victory for nuance. Although collective management of copyright is necessary, the monopoly of collective management organizations should not lead to rates that are detached from the economic reality of hoteliers. Empty rooms do not watch TV, and the invoice should reflect this, provided that it is administratively feasible. For the Belgian market, this means that flat rates that do not take actual occupancy into account will come under pressure.
Dutch 
English