Opinion of the Advocate General — ECLI:EU:C:2006:224
Date: 2006-04-04
Language of the case: Portuguese
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: Action for failure to fulfil obligations - successful
Origin: Portugal

Summary of the Judgment 1. Approximation of laws – Copyright and related rights – Rental right and lending right in respect of protected works – Directive 92/100 (Council Directive 92/100, Arts 1 and 5) 2. Actions for failure to fulfil obligations – Disregard of obligations under a decision or a directive – Pleas in defence (Art. 226 EC) 1. A Member State which exempts all categories of public lending establishments from the obligation to pay remuneration to authors for public lending fails to fulfil its obligations under Articles 1 and 5 of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. Article 5(3) of that directive, pursuant to which Member States may exempt certain categories of establishments from the payment of the remuneration to authors for public lending referred to in Article 5(1), cannot be interpreted as allowing for total derogation from that obligation of remuneration, since the effect of such an interpretation would be to render Article 5(1) meaningless and thus deprive that provision of all effectiveness. The directive seeks to guarantee that authors and performers receive appropriate income and recoup the especially high and risky investments required particularly for the production of phonograms and films. The fact of exempting all categories of establishments which engage in such lending from the obligation laid down in Article 5(1) of the directive would deprive authors of remuneration with which they could recoup their investments, with inevitable repercussions for the creation of new works. (see paras 23-25, 42, operative part) 2. A Member State cannot properly plead the unlawfulness of a directive or decision addressed to it as a defence in an action for a declaration that it has failed to implement that decision or comply with that directive. (see para. 30)