Opinion of the Advocate General — ECLI:EU:C:2012:377
Date: 2012-06-21
Language of the case: English
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary – Judgment of the Court (Third Chamber), 18 October 2012 1. Approximation of laws – Legal protection of databases – Directive 96/9 – Right of the maker of a database to prevent extraction and/or re-utilisation of the whole or of a substantial part of the contents of that database (sui generis right) – Concept of re‑utilisation (European Parliament and Council Directive 96/9, Art. 7(2)(b)) 2. Approximation of laws – Legal protection of databases – Directive 96/9 – Aim (European Parliament and Council Directive 96/9) 3. Approximation of laws – Legal protection of databases – Directive 96/9 – Right of the maker of a database to prevent extraction and/or re-utilisation of the whole or of a substantial part of the contents of that database (sui generis right) – Scope – Mere accessibility of a website – Not included (European Parliament and Council Directive 96/9, Art. 7) 4. Approximation of laws – Legal protection of databases – Directive 96/9 – Concept of re-utilisation of the contents of a database – Scope – Data uploaded from a database protected by the sui generis right and sent by means of a web server located in one Member State to the computer of a person located in another Member State – Included – Conditions – Intention to target the public in the latter Member State – Criteria of assessment – Assessment by the national court (European Parliament and Council Directive 96/9, Art. 7) 5. Approximation of laws – Legal protection of databases – Directive 96/9 – Right of the maker of a database to prevent extraction and/or re-utilisation of the whole or of a substantial part of the contents of that database (sui generis right) – Location of the act of re-utilisation exclusively in the territory of the Member State of the web server – Not permissible (European Parliament and Council Directive 96/9, Art. 7) 1. See the text of the decision. (see paras 20-22) 2. Directive 96/9 on the legal protection of databases does not aim to introduce protection by the sui generis right governed by a uniform law at European Union level. The objective of that directive is, by approximating national laws, to remove the differences which existed between them in relation to the legal protection of databases, and which adversely affected the functioning of the internal market, the free movement of goods and services within the European Union and the development of an information market within the European Union. To that end, the directive requires all the Member States to make provision in their national law for the protection of databases by a sui generis right. In that context, the protection by the sui generis right provided for in the legislation of a Member State is limited in principle to the territory of that Member State, so that the person enjoying that protection can rely on it only against unauthorised acts of re‑utilisation which take place in that territory. (see paras 24-27) 3. The mere fact that a website containing a database protected by a sui generis right under Directive 96/9 on the legal protection of databases is accessible in a particular national territory is not a sufficient basis for concluding that the operator of that website is performing an act of re‑utilisation caught by the national law applicable in that territory. If the mere fact of being accessible were sufficient for it to be concluded that there was an act of re-utilisation, websites and data which, although obviously targeted at persons outside the territory of the Member State concerned, were nevertheless technically accessible in that State would wrongly be subject to the application of the relevant law of that State. (see paras 36, 37) 4. Article 7 of Directive 96/9 on the legal protection of databases must be interpreted as meaning that the sending by one person, constituted as a company, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer’s memory and display on its screen, constitutes an act of re‑utilisation of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess. Facts which may constitute such evidence are the circumstance that the data on that server includes data relating to sports matches taking place in the latter Member State, with the acts of sending proceeding from an intention to attract the interest of the public in that Member State, and the fact that the company granted, by contract, the right of access to its server to companies offering betting services to that public. Finally, the circumstance that the data placed online by that company is accessible to internet users in the latter Member State who are customers of those companies in their own language, which is not the same as those commonly used in the Member States from which the company pursues its activities, may, if that is the case, be supporting evidence for the existence of an approach targeting in particular the public in the latter Member State. (see paras 40-42, 47, operative part) 5. It cannot be argued that an act of re-utilisation within the meaning of Article 7 of Directive 96/9 on the legal protection of databases must in all circumstances be regarded as located exclusively in the territory of the Member State in which the web server from which the data in question is sent is situated. Besides the fact that it is sometimes difficult to localise such a server with certainty, such an interpretation would mean that an operator who, without the consent of the maker of the database protected by the sui generis right under the law of a particular Member State, proceeds to re-utilise online the content of that database, targeting the public in that Member State, would escape the application of that national law solely because his server is located outside the territory of that State. (see paras 44, 45)