Opinion of the Advocate General — ECLI:EU:C:2006:292
Date: 2006-05-04
Language of the case: Danish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgment 1. Approximation of laws – Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society – Distribution rights (European Parliament and Council Directive 2001/29, Art. 4(2)) 2. Acts of the institutions – Choice of legal basis – Criteria – Measure concerning harmonisation of certain aspects of copyright and related rights in the information society (Arts 47(2) EC, 55 EC and 95 EC; European Parliament and Council Directive 2001/29) 3. Approximation of laws – Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society – Distribution rights (European Parliament and Council Directive 2001/29, Art. 4(2)) 1. Article 4(2) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society is to be interpreted as precluding national rules providing for exhaustion of the distribution right in respect of the original or copies of a work placed on the market outside the European Community by the rightholder or with his consent. It follows from the clear wording of Article 4(2) of Directive 2001/29, in conjunction with the 28th recital in the preamble to that directive, that that provision does not leave it open to the Member States to provide for a rule of exhaustion other than the Community-wide exhaustion rule. That finding is supported by Article 5 of that directive, which allows Member States to provide for exceptions or limitations to the reproduction right, the right of communication to the public of works, the right of making available to the public other subject-matter and the distribution right. Nothing in that article indicates that the exceptions or limitations authorised might relate to the rule of exhaustion laid down in Article 4(2) of Directive 2001/29 and, therefore, allow Member States to derogate from that rule. (see paras 24-25, 27, operative part 2) 2. In the context of the organisation of the powers of the Community, the choice of the legal basis for a measure must rest on objective factors which are amenable to judicial review. Those factors include in particular the aim and content of the measure. Articles 47(2) EC, 55 EC and 95 EC, on the basis of which Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society was adopted, allow for the taking of measures necessary for the smooth functioning of the internal market as regards freedom of establishment and the freedom to provide services through harmonisation of national laws pertaining to the content and exercise of copyright and related rights. Directive 2001/29 clearly pursues the objectives covered by the abovementioned provisions of the Treaty. (see paras 30-32) 3. Article 4(2) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, which provides that the distribution right shall not be exhausted within the Community in respect of the original or copies of the work except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent, does not infringe the international agreements concluded by the Community in matters of copyright and related rights or the rules of the Treaty concerning the establishment of a competition policy, or the principles of proportionality and equal treatment, or freedom of expression, or Articles 151 EC and 153 EC. First, with respect to the international agreements concluded by the Community on copyright and related rights, neither Article 6(2) of the World Intellectual Property Organisation (WIPO) Copyright Treaty nor Articles 8(2) and 12(2) of the WIPO Performances and Phonograms Treaty impose an obligation on the Community, as a contracting party, to provide for a specific rule concerning the exhaustion of that right. Secondly, regarding the Treaty rules relating to the establishment of a competition policy, it follows from the first recital in the preamble to Directive 2001/29 that the harmonisation achieved by that directive is also intended to ensure undistorted competition in the internal market, in accordance with Article 3(1)(g) EC. Thirdly, in the light of the objectives pursued by the Community institutions, it appears that the choice made in Article 4(2) in favour of the rule of exhaustion in the Community is not a disproportionate measure capable of affecting the validity of that provision. Fourthly, since the copyright holder is in a position to exercise his control over the first placing on the market of the object covered by the distribution right, freedom of expression clearly cannot be relied upon to have the rule of exhaustion invalidated. Moreover, the alleged restriction on the freedom to receive information is justified in the light of the need to protect intellectual property rights, including copyright, which form part of the right to property. Fifthly, as regards the principle of equal treatment, there is no doubt that a producer and a licence holder established in a non-member country are not in an identical or comparable situation to that of a producer and a licence holder established in the Community. Lastly, regarding Articles 151 EC and 153 EC, it follows from a number of recitals in the preamble to that directive and from the scheme of exceptions and limitations provided for in Article 5 that the cultural aspects specific to the Member States, and the right to education, which the Community legislature must take into account in its action, have been fully taken into consideration by the Community institutions in the drafting and adoption of Directive 2001/29. (see paras 40, 49, 58, 63, 65, 69, 80)