Opinion of the Advocate General — ECLI:EU:C:2016:459
Date: 2016-06-16
Language of the case: Dutch
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Netherlands

summary of the previous case-law, contained in paragraphs 35 to 52 of the judgment in Reha Training, shows no inconsistency in the interpretation of that concept. However, concerning the concept of ‘copy’, the legislature stated clearly, in recital 29 of Directive 2001/29, the specific context in which that notion is used in that directive, namely that of the distribution right, the exhaustion of which cannot occur because of online distribution. However, such a limitation of the concept of ‘copy’ — which includes, in my view, digital copies (see point 44 of this Opinion) — is unnecessary with regard to the lending right governed by Directive 2006/115 because, in any event, that right cannot be exhausted, irrespective of how the concept of ‘copy’ is defined. 26 Judgment of 22 January 2015, C‑419/13, EU:C:2015:27. 27 Judgment of 22 January 2015 in Art & Allposters International, C‑419/13, EU:C:2015:27, paragraph 37. 28 Ibid., paragraph 43. 29 Ibid., paragraph 49 and operative part. 30 Judgment of 3 July 2012 in Usedsoft, C‑128/11, EU:C:2012:407, paragraph 51. 31 Judgment of 11 September 2014 in Eugen Ulmer, C‑117/13, EU:C:2014:2196. 32 Judgment of 11 September 2014 in Eugen Ulmer, C‑117/13, EU:C:2014:2196, paragraphs 43 to 46. 33 See judgments of 4 October 2011 in Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 161 to 180, and 5 June 2014 in Public Relations Consultants Association, C‑360/13, EU:C:2014:1195, paragraphs 22 to 52, in particular paragraphs 29 to 33. 34 Judgment of 5 March 2015, C‑479/13, EU:C:2015:141. 35 Judgment of 5 March 2015, C‑502/13, EU:C:2015:143. 36 See the request for a preliminary ruling lodged by the Polish Constitutional Court in Rzecznik Praw Obywatelskich (C‑390/15), currently pending before the Court. 37 Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee of 7 April 2016 — Towards a single EU VAT area — Time to decide (COM(2016) 148 final), p. 12. 38 Treaty approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6). 39 See, to that effect, judgment of 22 January 2015 in Art & Allposters International, C‑419/13, EU:C:2015:27, paragraph 38 and the case-law cited). 40 See Article 7(1) of the Copyright Treaty. 41 Article 8 provides that ‘… authors of literary and artistic works shall enjoy the exclusive right of authorising any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them’. 42 See point 55 of this Opinion. 43 See also Matulionyte, R., op. cit. 44 Dusollier, S., op. cit., EBLIDA, op. cit., p. 13 and the documents cited, and Matulionyte, R., op. cit. and the documents cited. 45 My emphasis. 46 Judgment of 3 July 2012, C‑128/11, EU:C:2012:407. 47 Judgment of 10 April 2014 in ACI Adam and Others (C‑435/12, EU:C:2014:254, paragraphs 31 and 41).