Judgment;Summary — ECLI:EU:C:2026:13
Date: 2026-01-15
Language of the case: German
Court formation: Eighth Chamber
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-822/24 – 1 
Case C-822/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 December 2024 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
26 September 2024 
Defendant and appellant on a point of law: 
bluechip Computer Aktiengesellschaft 
Applicant and respondent in the appeal on a point of law: 
Zentralstelle für private Überspielungsrechte (ZPÜ) 
  
Subject matter of the main proceedings 
In the main proceedings, the applicant is asserting against the defendant, in the 
context of an action by stages, claims for disclosure, determination of the payment 
obligation and payment of remuneration on the grounds of the placement on the 
market of PCs, notebooks and workstations with a built-in hard disk. 
Subject matter and legal basis of the request 
This is a request for a preliminary ruling on the interpretation of provisions of EU 
law. The request concerns the area of ‘intellectual, industrial and commercial 
property’. 
Question referred for a preliminary ruling 
Is it compatible with Article 5(2)(b) of Directive 2001/29/EC for national 
legislation to require manufacturers, importers or traders who sell storage media to 
commercial end customers (legal persons or natural persons who – in a manner 
EN 
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discernible by the manufacturer, importer or trader – place orders as end users for 
commercial purposes) to pay remuneration to finance the fair compensation for 
the exception to the reproduction right in respect of reproduction for private use, 
unless such manufacturers, importers or traders prove, in accordance with the 
rules of national law, that reproductions of a work made with the aid of those 
devices were in fact made, at the very most, on a small scale by a natural person 
for private use on any medium, or are made in the normal course of events? 
Provisions of national law relied on 
Paragraph 53 (‘Reproduction for private and other personal uses’) of the Gesetz 
zur Regelung des Urheberrechts in der Informationsgesellschaft (Law on the 
Regulation of Copyright in the Information Society, ‘the UrhG’), in the version 
applicable to the dispute in the main proceedings, provided as follows: 
‘(1) It shall be permissible for a natural person to make single copies of a work for 
private use on any medium, provided that they do not serve any commercial 
purpose either directly or indirectly and provided that they are not copied from an 
obviously unlawfully produced model or a model which has been unlawfully 
made available to the public. A person authorised to make copies may have such 
copies made by another person where that is done free of charge or where that 
involves copies on paper or any similar medium, effected by the use of any kind 
of photomechanical technique or by some other process having similar effects. 
(2) It shall be permissible to make, or to have made, single copies of a work: 
1. for personal scientific use, if and to the extent that the making of copies is 
required for that purpose and provided that those copies do not serve any 
commercial purpose; 
2. for inclusion in a personal archive if and to the extent that the reproduction 
is necessary for that purpose and a personal copy of the work is used as the model 
from which the copy is made; 
3. for personal information concerning current affairs if the work was 
broadcast; 
4. for all other personal use: 
a) in the case of small parts of a released work or individual articles published 
in newspapers or periodicals; 
b) in the case of a work which has been out of print for at least two years. 
Those provisions shall apply in the case referred to in the first sentence, point 2, 
only if in addition: 
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1. the copy is produced on paper or any similar medium by the use of any kind 
of photomechanical technique or by some other process having similar effects; or 
2. use is exclusively analogue in nature; or 
3. the archive serves the public interest and no direct or indirect economic or 
commercial purpose is pursued. 
(3) It shall be permissible to make copies or have copies made of small parts of 
a work, of small-scale works or of individual articles published in newspapers or 
periodicals or made available to the public if those copies are for personal use in 
the following cases: 
1. for the illustration of teaching in schools, in non-commercial training and 
further training institutions as well as in vocational training institutions in the 
required quantities for the participants in that teaching; or 
2. for state examinations and examinations in schools, higher education 
institutions, non-commercial training and further training institutions, as well as in 
vocational training institutions in the required quantities, if and to the extent that 
the making of copies is required for those purposes. In all cases, the making of 
copies of a work that are intended for teaching use in schools shall be permissible 
only with the consent of the copyright holder.’ 
Paragraph 54 of the UrhG (‘Obligation to pay remuneration’) provided as follows: 
‘(1) If the nature of a work gives rise to an expectation of reproduction by virtue 
of Paragraph 53(1) to (3), the author of the work shall have a claim to payment of 
fair remuneration against the producer of devices and of storage media of the type 
used, whether alone or in combination with other devices, storage media or 
accessories, to make such reproductions.’ 
(2) The claim provided for under subparagraph (1) shall not apply if it can be 
expected under the circumstances that the devices or storage media are not used 
for making reproductions within the territory where the present law applies.’ 
Paragraph 54b of the UrhG (‘Trader’s or importer’s obligation to pay 
remuneration’) provided as follows: 
‘(1) Any person commercially importing or reimporting the devices or storage 
media into the territory where the present law applies or trading in those devices 
or storage media shall be jointly and severally liable along with the manufacturer. 
(2) The importer is the person who introduces the devices or storage media, or 
who causes them to be introduced, into the territory where the present law applies. 
Where importation is based on a contract with a non-resident, the importer is only 
the contracting party residing in the territory where the present law applies. Any 
person acting only as forwarding agent, carrier or in a similar function in the 
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introduction of the goods is not deemed to be the importer. Any person who 
introduces, or causes the introduction of, items from third countries into a free 
zone or a free warehouse pursuant to Article 166 of Council Regulation (EEC) 
No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 
302, p. 1) is deemed to be the importer only if the items are used in that area or if 
they are released for free circulation for customs purposes. 
(3) There shall be no obligation incumbent on the trader to pay remuneration: 
1. if a person obliged to pay the remuneration from whom the trader obtains 
the devices or storage media is bound by an inclusive contract concerning the 
remuneration; or 
2. if the trader notifies the receiving office designated in Paragraph 54h(3) in 
writing of the nature and quantity of the devices and storage media received and 
of the source of supply by 10 January and 10 July for each preceding six months 
of a calendar year. 
(4) If the person obliged to pay the remuneration fails to comply with his or her 
obligation to provide information, complies only incompletely, or otherwise 
provides incorrect information, double the rate of remuneration may be 
demanded.’ 
Provisions of European Union law relied on 
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 (OJ 2001 L 167, p. 10), Article 2 and Article 5(2)(b) 
European Union case-law relied on 
Judgment of 21 October 2010, Padawan (C-467/08, EU:C:2010:620, ‘the 
Padawan judgment’) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, the Zentralstelle für private Überspielungsrechte (Central Agency 
for Private Re-Recording Rights, ‘the ZPÜ’), is an association of German 
collecting societies that is entitled to assert claims for remuneration based in 
copyright for the reproduction of audio and audiovisual works. The defendant 
manufactures, imports, and trades in, PCs, notebooks and workstations with a 
built-in hard drive. 
2 In the context of an action by stages, the applicant is asserting against the 
defendant claims for the provision of information, determination of the payment 
obligation and the payment of remuneration on the grounds of the placement on 
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the market of such devices between 1 January 2014 and 31 December 2017; in 
doing so it relies on the rates of remuneration set out in inclusive contracts that it 
entered into jointly alongside other collecting societies with the Bundesverband 
für Informationswirtschaft, Telekommunikation und neue Medien e. V. (German 
Federal Association for Information Technology, Telecommunications and New 
Media, ‘BITKOM’) or individually with the Verband zur Rücknahme und 
Verwertung von Elektro- und Elektronikartikeln e. V. (Association for the Take-
Back and Recycling of Waste Electrical and Electronic Equipment, ‘VERE’). 
According to those contracts, importers, traders and manufacturers who have 
become parties to the inclusive contract are liable to pay the following rates of 
remuneration for each device placed on the market: 13.1875 euros for a consumer 
PC; 4 euros for a business PC; 10.625 euros for a small mobile PC; and 4 euros 
for a professional workstation. 
3 The defendant is not a contracting party to those inclusive contracts. However, the 
appellant asserts that the rates of remuneration set out in the inclusive contracts 
are relevant because, in cases of disputes, they have indicative value for the 
purposes of calculating fair compensation. 
4 With respect to the present action by stages, the Oberlandesgericht München 
(Higher Regional Court, Munich, Germany), by its partial judgment of 
1 December 2023, ordered the defendant to provide information on the type (trade 
marks, type designations) and quantity of personal computers (PCs), small mobile 
PCs and professional workstations that it sold or placed on the market in the 
Federal Republic of Germany during the period from 1 January 2014 until 
31 December 2017, unless the relevant devices were obtained by the defendant as 
a trader in the Federal Republic of Germany. It also ruled that the defendant is 
obliged to pay the applicant, for each PC sold or placed on the market in the 
Federal Republic of Germany during the time period from 1 January 2014 until 
31 December 2017, the rates of remuneration specified under paragraph 2, unless: 
– the devices were obtained by the defendant as a trader in the Federal 
Republic of Germany; or 
– the defendant provided proof of compliance; or 
– the defendant proves that the devices were exported by a third party, 
without first having been sold or otherwise made available to a 
German end customer; or 
– the defendant proves that those devices were clearly reserved for uses 
other than making reproductions for personal use as provided for under 
Paragraph 53(1) to (3) of the UrhG, old version, or Paragraph 53(1) 
and 2, Paragraphs 60a – 60f of the UrhG, and that any such 
reproductions made with the aid of those devices were in fact made, at 
the very most, on a small scale and in the normal course of events. 
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5 By the appeal on a point of law, which the applicant is seeking to have dismissed, 
the defendant is pursuing its application for dismissal of the action. 
Essential arguments 
6 The Oberlandesgericht München (Higher Regional Court, Munich, Germany) 
found that the defendant was obliged to provide information pursuant to 
Paragraph 54f of the UrhG. For the period relevant to the dispute, that is to say 
1 January 2014 to 31 December 2017, the Higher Regional Court, Munich, held 
that the authoritative provisions were those set down in Paragraphs 54 and 54b of 
the UrhG, in the version of the Zweites Gesetz zur Regelung des Urheberrechts in 
der Informationsgesellschaft vom 26. Oktober 2007 (Second Law on the 
Regulation of Copyright in the Information Society of 26 October 2007, ‘UrhG, 
old version’), which entered into force on 1 January 2008. According to those 
provisions, the author may require the person obliged to effect payment to provide 
information on the type and quantity of the devices and storage media sold or 
placed on the market in the territory where that law applies. In accordance with 
Paragraphs 54 and 54b of the UrhG, old version, there was an obligation to pay 
remuneration in respect of the devices and storage media placed on the market by 
the defendant. It was not possible for the defendant to successfully rely on the 
assertion that the vast majority of the devices are not sold to private end users and 
are therefore not used to a relevant extent for making private copies. The devices 
at issue in the present case are, by their nature, technically suitable and obviously 
intended for reproducing the copyright works at issue – audio and audiovisual 
works, together with textual works and images that do not form part of the audio 
or audiovisual work – in the context of making private copies as provided for 
under Paragraph 53 of the UrhG, old version. 
7 The Higher Regional Court, Munich, considers that where devices and storage 
media are supplied in cases where they are not clearly reserved for uses other than 
making private copies, there is a presumption that the devices and storage media 
are used for making authorised copies, subject to an obligation to pay 
remuneration, of copyright works. That presumption applies, first, where the 
devices and media are made available to natural persons. Second, where storage 
media have been supplied to a commercial customer or to a legal person, there is a 
rebuttable presumption of use subject to an obligation to pay remuneration. That 
presumption could be rebutted only by proving that reproductions made with the 
aid of those devices in accordance with Paragraph 53(1) to (3) of the UrhG, old 
version, were in fact made, at the very most, on a small scale, or that they were 
made in the normal course of events. However, the defendant had failed to present 
any factual circumstance to rebut the presumption that copies subject to an 
obligation to pay remuneration were being made. In the present case – contrary to 
the defendant’s assertion – it was also to be expected, vis-à-vis the devices sold to 
commercial end customers, that those devices would be used to make authorised 
private copies. 
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8 According to the case-law of the Court of Justice of the European Union (the 
‘Court of Justice’), Article 5(2)(b) of Directive 2001/29/EC must be interpreted as 
meaning that the indiscriminate application of the private copying levy, in 
particular with respect to digital reproduction equipment, devices and media not 
made available to private users and clearly reserved for uses other than private 
copying is incompatible with the directive (judgment in Padawan, paragraphs 52 
and 53). 
9 The links to a natural person and to private use provided for under Article 5(2)(b) 
of Directive 2001/29/EC give rise to practical difficulties. First, devices such as 
PCs with memories which are technically capable of reproducing copyright works 
as contemplated in Article 2 of Directive 2001/29/EC can be used not only by 
natural persons for private use, but also by the employees of legal persons for 
commercial purposes. Second, reproductions for private use can be made not only 
where PCs with memories are supplied to natural persons but also in cases where 
they are supplied to legal persons. Furthermore, it cannot be assumed that the 
level of use for making private copies is in fact negligible simply by virtue of the 
fact that PCs with memories are supplied to public authorities, legal persons, or 
natural persons who work as freelancers or traders for commercial purposes. 
General life experience shows that the fact that a PC with a hard disk – which, by 
its nature, can be used for making image and audio recordings – is made available 
to a commercial end customer does not preclude the possibility of its use for 
private purposes. 
10 According to the case-law of the Court of Justice of the European Union, those 
practical difficulties must be taken into account in a number of respects when 
interpreting the provision set down in Article 5(2)(b) of Directive 2001/29/EC. 
The case-law provides that in order for there to be a link between the application 
of the levy intended to finance fair compensation with respect to digital 
reproduction equipment, devices and media and actual use, it is necessary for 
there to be “deemed” use of them for the purposes of private copying (see 
judgment in Padawan, paragraph 59); for the purposes thereof, it is presumed that 
natural persons take full advantage of the functions associated with the equipment, 
devices and media, including copying (see judgment in Padawan, paragraph 55). 
The practical difficulties associated with ascertaining the private purpose and 
identifying the end user also justify the establishment of a presumption of use 
subject to an obligation to pay remuneration, which may be rebutted where the 
manufacturer or importer establishes that he, she or it has supplied the devices or 
storage media to persons other than natural persons for purposes clearly unrelated 
to copying for private use (see judgment of 5 March 2015, C-463/12, Copydan 
Bändkopi, paragraph 50), including where those storage devices and media are 
made available to natural persons (see judgment in Padawan, paragraph 54 and 
55). 
11 On the basis of that case-law, the referring court considers that the person who is 
(potentially) liable to pay remuneration may be required to prove that the devices 
and storage media placed on the market have not been used to make copies for 
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private use, even if those devices and storage media have been supplied to a 
commercial customer and are clearly reserved for purposes other than private 
copying (Bundesgerichtshof (Federal Court of Justice, Germany, ‘BGH’), 
judgment of 16 March 2017, 1 ZR 39/15, GRUR (Gewerblicher Rechtsschutz und 
Urheberrecht (Industrial Property Rights and Copyright)) 2017, 702 – PC mit 
Festplatte I (PC with hard disk I)). If use of the devices is still pending at the time 
of clarification of the obligation to pay remuneration, it will be sufficient to 
establish that, in the normal course of events, use of the devices and storage media 
in question for the purposes of making reproductions subject to an obligation to 
pay remuneration appears to be precluded or is at least unlikely to take place on 
anything more than a small scale. As proof of that, the manufacturer, importer or 
trader can, for example, submit a written confirmation from the commercial 
customer that he, she or it uses, or will use, the purchased device for his, her or its 
own use in the course of his, her or its business activity. 
12 By contrast, the Oberster Gerichtshof (Supreme Court) of the Republic of Austria 
(‘Austrian Supreme Court’ or ‘OGH’) has adopted an interpretation of EU law 
which may possibly derogate, at least in part, from that interpretation, since it 
takes the view that no payment obligation arises in situations where the trader 
makes a supply to an end user who is obviously not obliged to pay fair 
compensation (OGH, MMR (Multimedia und Recht (Multimedia and Law)) 2017, 
388, paragraph 50). The Austrian Supreme Court considered that that would be 
the case, in any event, in so far as the supply is effected to legal persons, since free 
use of the work by means of reproduction for private use is expressly limited to 
natural persons under Article 5(2)(b) of Directive 2001/29/EC (OGH, MMR 2017, 
388, paragraph 51). It considered that the same applied where a natural person – in 
a manner discernible by the trader – placed an order as an end user for commercial 
purposes, which was certainly to be assumed if the order was placed using the 
address of a company, particularly in cases where a VAT identification number 
had been provided (OGH, MMR 2017, 388, paragraph 51). Those statements 
could be construed as meaning that the Austrian Supreme Court does not 
assume – as the German Federal Court of Justice does – that there is a rebuttable 
presumption that private copies will be made in cases where the supply is effected 
to commercial end customers, but rather assumes that there is no payment 
obligation from the outset because there is, per se, a supply which is clearly 
effected for purposes other than the production of private copies. 
13 First, it cannot be inferred from the wording of Article 5(2)(b) of Directive 
2001/29/EC that a supply effected to legal persons or to natural persons who have 
ordered a storage medium for commercial purposes is exempt per se from the 
obligation to pay fair compensation. Second, the spirit and purpose of 
Article 5(2)(b) of Directive 2001/29/EC also appear to militate against a finding 
that there can be no obligation to pay from the outset in cases where a supply is 
effected to commercial end customers; that is because it is consistent with general 
life experience that the devices and storage media concerned are also widely used 
within working environments or in the context of commercial enterprises for the 
purposes of making private copies, or are transferred to private users following the 
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end of their commercial use. Finally, the referring court considers that the 
regulatory context of Article 5(2)(b) of Directive 2001/29/EC also supports an 
argument in favour of not assuming a strict exclusion of a payment obligation in 
situations where supplies are effected to commercial end customers and of 
adopting a presumption rule that takes into account the relevant circumstances and 
takes due account of the interests of both rightholders and the persons obliged to 
make payment, as well as the practical difficulties of identifying private copies. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 The success of the defendant’s appeal on a point of law depends on the 
interpretation of Article 5(2)(b) of Directive 2001/29/EC on the harmonisation of 
certain aspects of copyright and related rights in the information society. In view 
of the judgment of the Supreme Court of the Republic of Austria of 21 February 
2017 (4 Ob 62/16w, MMR 2017, 388, paragraphs 50 to 53 and 59) and taking into 
account the decision of the Bundesverfassungsgericht (Federal Constitutional 
Court, Germany) of 24 May 2022 (1 BvR 2342/17, GRUR 2022, 1060), the 
correct interpretation of European Union law is not so obvious as to leave no 
scope for any reasonable doubt.