On 24 May 2022, the Amsterdam Court of Appeal ruled that for the last 12 years collecting society Buma/Stemra has abused its dominant position by applying unequal conditions for equal performance. In the case ABMD claimed damages from and enforcement action by Buma/Stemra.
ABMD is an interest group for suppliers of background music for use in cafés and restaurants. In order to obtain a license to make music available to customers for business purposes, the ABMD members conclude agreements with Sabam. In Belgium Sabam is comparable to Buma/Stemra in the Netherlands. The content of the license agreement with Sabam is determined by Buma/Stemra. For a fee, ABMD members then obtain a license to offer the music for commercial use.
Streaming services, such as Spotify, also conclude agreements with Buma/Stemra. They obtain a license for offering music for personal use and therefore do not have to pay a fee for offering music for commercial use.
When a business applies for a license for the commercial use of music, no distinction is made between businesses who obtain music through a streaming service or through an ABMD member. ABMD noticed already back in 2010 that private subscriptions to such streaming services are being used for commercial ends. This system of licensing and the lack of enforcement by Buma/Stemra of misuse of private licenses puts ABMD members at a competitive disadvantage. After all, they have to pay a fee for offering music to businesses, while streaming services do not have to pay such a fee.
The Court of Amsterdam ruled that Buma/Stemra, as a monopolist, should equalize the requested fee and owes damages to the ABMD members. However, is not obliged to take enforcement action against the misuse of private subscriptions. Both parties appealed the judgment, after which the Court of Appeal ruled that this was an abuse of a dominant position within the meaning of Article 102(c) TFEU. Buma/Stemra must include a provision in future licence agreements prohibiting the misuse of a private subscription and is obliged to take enforcement action against misuse. It must also pay damages to ABMD members.
