# C_2021035EN.01002601.xml

| 1.2.2021 | EN | Official Journal of the European Union | C 35/26 |
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1.2.2021

EN

Official Journal of the European Union

C 35/26

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Request for a preliminary ruling from the Landgericht Saarbrücken (Germany) lodged on 26 October 2020 — Koch Media GmbH v FU

(Case C-559/20)

(2021/C 35/39)

Language of the case: German

Referring court

Landgericht Saarbrücken

Parties to the main proceedings

Applicant: Koch Media GmbH

Defendant: FU

Questions referred

| 1. | a) | Is Article 14 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights ‘(the Enforcement Directive’) (1) to be interpreted as meaning that the provision covers necessary lawyers’ fees as ‘legal costs’ or as ‘other expenses’ incurred by a holder of intellectual property rights within the meaning of Article 2 of the Enforcement Directive by virtue of the fact that he asserts, out of court, a right to apply for a prohibitory injunction against an infringer of those rights by way of a warning notice? |
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1.

a)

Is Article 14 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights ‘(the Enforcement Directive’) (1) to be interpreted as meaning that the provision covers necessary lawyers’ fees as ‘legal costs’ or as ‘other expenses’ incurred by a holder of intellectual property rights within the meaning of Article 2 of the Enforcement Directive by virtue of the fact that he asserts, out of court, a right to apply for a prohibitory injunction against an infringer of those rights by way of a warning notice?

| b) | In the event that 1a) is answered in the negative: Is Article 13 of the Enforcement Directive to be interpreted as meaning that the provision covers the lawyers’ fees referred to in 1a) in the form of damages? |
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b)

In the event that 1a) is answered in the negative: Is Article 13 of the Enforcement Directive to be interpreted as meaning that the provision covers the lawyers’ fees referred to in 1a) in the form of damages?

| 2. | a) | Is EU law, particularly with regard to






  — | Articles 3, 13 and 14 of the Enforcement Directive, |
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2.

a)

Is EU law, particularly with regard to

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Articles 3, 13 and 14 of the Enforcement Directive,

| — | Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, (2) and |
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Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, (2) and

| — | Article 7 of Directive 2009/24/EC the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Codified version) (3)

  to be interpreted as meaning that a holder of intellectual property rights within the meaning of Article 2 of the Enforcement Directive is in principle entitled to reimbursement of the full amount of the lawyers’ fees referred to in 1a), or at least a reasonable and substantial proportion of those fees, even if |
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Article 7 of Directive 2009/24/EC the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Codified version) (3)

to be interpreted as meaning that a holder of intellectual property rights within the meaning of Article 2 of the Enforcement Directive is in principle entitled to reimbursement of the full amount of the lawyers’ fees referred to in 1a), or at least a reasonable and substantial proportion of those fees, even if

| — | the alleged infringement has been committed by a natural person outside his trade or profession, and |
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—

the alleged infringement has been committed by a natural person outside his trade or profession, and

| — | a national provision provides, for such a case, that such lawyers’ fees are generally recoverable only after the value in dispute has been reduced? |
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a national provision provides, for such a case, that such lawyers’ fees are generally recoverable only after the value in dispute has been reduced?

| b) | In the event that Question 2a) is answered in the affirmative: Is the EU law referred to in Question 2a) to be interpreted as meaning that an exception to the principle referred to in 2a), according to which the rightholder must be reimbursed the full amount of the lawyers’ fees referred to in 1a), or at least a reasonable and substantial proportion of those fees,
  taking account of other factors (such as, for instance, how current the work is, the period of publication and the infringement by a natural person outside the interests of his trade or profession),
  is to be considered
  even if the infringement of intellectual property rights within the meaning of Article 2 of the Enforcement Directive consists in file sharing, that is to say making a work available to the public by offering it for free download to all users on a freely accessible exchange platform that has no digital rights management? |
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b)

In the event that Question 2a) is answered in the affirmative: Is the EU law referred to in Question 2a) to be interpreted as meaning that an exception to the principle referred to in 2a), according to which the rightholder must be reimbursed the full amount of the lawyers’ fees referred to in 1a), or at least a reasonable and substantial proportion of those fees,

taking account of other factors (such as, for instance, how current the work is, the period of publication and the infringement by a natural person outside the interests of his trade or profession),

is to be considered

even if the infringement of intellectual property rights within the meaning of Article 2 of the Enforcement Directive consists in file sharing, that is to say making a work available to the public by offering it for free download to all users on a freely accessible exchange platform that has no digital rights management?

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(1)  OJ 2004 L 157, p. 45.

(2)  OJ 2001 L 167, p. 10.

(3)  OJ 2009 L 111, p. 16.

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