Opinion of the Advocate General — ECLI:EU:C:2026:349
Date: 2026-04-23
Language of the case: German

Anonymised version 
Translation C-176/25 – 1 
Case C-176/25 [Steizer] i 
Request for a preliminary ruling 
Date lodged: 
4 March 2025 
Referring court: 
Oberlandesgericht Düsseldorf (Germany) 
Date of the decision to refer: 
24 February 2025 
Defendant and appellant: 
IU 
Applicant and respondent: 
BT 
  
[…] 
OBERLANDESGERICHT DÜSSELDORF (HIGHER REGIONAL COURT, 
DÜSSELDORF, GERMANY) 
ORDER 
In the case of 
IU […] 
defendant and appellant, 
[…] 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2025 – CASE C-176/25 
 
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v 
BT […] 
applicant and respondent, 
[…] 
the 20th Civil Chamber of the Oberlandesgericht Düsseldorf (Higher Regional 
Court, Düsseldorf) […], sitting on 24 February 2025, has made the following 
Order: 
I. 
The proceedings are stayed. 
II. 
The Higher Regional Court, Düsseldorf, refers the following questions to the 
Court of Justice of the European Union concerning the interpretation of 
Article 8(1) of Regulation (EC) No 864/2007 on the law applicable to non-
contractual obligations (‘the Rome II Regulation’) 
for a preliminary ruling: 
1. Is Article 8(1) of the Rome II Regulation to be interpreted as meaning that 
the law of the State for which protection is claimed also applies to the question of 
the (formal) validity of the assignment of exclusive rights to use photographs from 
the author to the assignee? 
2. If Question 1 is answered in the negative, is the question of the (formal) 
validity of the assignment of exclusive rights to use photographs from the author 
to the assignee governed by the lex loci contractus and, consequently, are 
Articles 4 and 11 of Regulation (EC) No 593/2008 of the European Parliament 
and of the Council of 17 June 2008 on the law applicable to contractual 
obligations (‘the Rome I Regulation’) applicable? 
Grounds 
A. 
1 In Cottbus, Federal Republic of Germany, operating under the company name 
[…], the applicant distributes accessories for motor vehicles, including floor mats, 
through the internet, including the eBay sales platform. To display her goods on 
the internet, on several occasions during the period from April 2014 to April 2018 
she commissioned, by means of oral agreements, […], a professional 
photographer, to take photographs for [her company] of the car mats on sale in 
order to use them in connection with internet sales offers. [The photographer] is a 
STEIZER 
 
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Polish national who operates a photographic studio in Dąbrowa Górnicza, Poland. 
On each occasion, once the photographs had been taken in [the photographer]’s 
photographic studio in Poland, the photographer handed over to the applicant’s 
husband, on the day on which the photographs were taken, a USB stick containing 
the photographs of the car mats for use in [the company]’s sale of car mats. No 
written agreement was concluded on the use of the photographs taken by [the 
photographer] or on the assignment of the rights of use of those photographs to the 
applicant. Nor was any agreement made on the law applicable to the 
commissioning of [the photographer] and to the assignment of rights of use. 
During the period from February to March 2018, the defendant offered floor mats 
for cars on eBay, using the photographs taken at the applicant’s request by [the 
photographer] to illustrate the various items on offer. 
2 The applicant regards the defendant’s publication of the photographs on the 
internet as an infringement of her rights of use of the photographs. 
3 As sought in the application, the Landgericht (Regional Court) ordered the 
defendant to cease and desist, provide information and pay the costs arising from 
the formal notice. It held that the photographs were protected under Paragraph 72 
of the Urhebergesetz (Law on copyright, ‘the UrhG’) and that the photographer 
had validly assigned the exclusive rights to use the photographs to the applicant. 
The defendant infringed those rights of use by making the photographs available 
to the public within the meaning of Paragraph 19a of the UrhG without the 
applicant’s consent. The Regional Court found that the applicant was therefore 
entitled to a claim against the defendant under Paragraph 97(1) of the UrhG for an 
order to cease and desist from making the photographs available to the public as 
well as supplementary claims under Paragraph 242 of the Bürgerliches 
Gesetzbuch (German Civil Code, ‘the BGB’) (disclosure of information) and the 
first sentence of Paragraph 97a(3) of the UrhG (reimbursement of pre-trial costs 
incurred for the use of legal services). 
4 The defendant has appealed against that judgment. It considers that the applicant 
does not have standing to bring proceedings, because there was no valid 
assignment from the photographer […] to the applicant of the exclusive rights to 
use the photographs at issue. In that regard, the defendant argues that the validity 
of the assignment of the exclusive rights to use the photographs is governed by 
Polish law, since Article 4(2) of the Rome I Directive prescribes the application of 
lex loci contractus. Since the characteristic obligation under the contract, namely 
the creation of the photographs by a Polish photographer and the subsequent 
assignment of the rights of use and the conclusion of a contract, took place in a 
photographic studio in Poland, the defendant contends that Polish law applies by 
virtue of lex loci contractus and Article 11(1) of the Rome I Regulation. Polish 
law, namely Article 53 of the Polish Law on copyright, the defendant argues, 
requires written form as defined in Article 78 of the Polish Civil Code for the 
assignment of rights of use in respect of copyright photographs. By contrast, the 
applicant considers that German law is applicable to the facts, since the ‘country 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2025 – CASE C-176/25 
 
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of protection’ rule (lex loci protectionis) which is enshrined in Article 8(1) of the 
Rome II Regulation also applies to the act of disposal of the exclusive right of use 
(the Spaltungstheorie, or ‘splitting theory’). Since an act of infringement took 
place in the Federal Republic of Germany, and thus the right to use the 
photographs was also assigned in Germany, the applicant asserts that the 
agreement on assignment of the rights of use is also governed by German law. 
Questions referred for a preliminary ruling 
5 The resolution of the dispute hinges on the questions referred for a preliminary 
ruling. The outcome of the dispute depends on whether the applicable law is 
determined by the principle of lex loci contractus or of lex loci protectionis. 
6 If the principle of lex loci contractus were applied, the assignment to the applicant 
of exclusive rights to use the photographs would be governed by Polish law. 
According to the defendant, Polish law provides that the assignment of exclusive 
rights to use photographs must be made in written form. If the principle of lex loci 
protectionis were applied, German law would be applicable, because the 
infringement took place in the territory of the Federal Republic of Germany. 
Under German law, the assignment of exclusive rights to use photographs is valid 
if made informally, in particularly by oral agreement. Accordingly, the judgment 
at first instance might have to be amended if, under Polish law, the right to use 
photographs cannot be validly assigned by oral agreement between the author and 
the user, since in that case a valid assignment of the rights of use to the applicant 
would not have taken place. 
7 In the relevant literature, it is a matter of debate whether the right to use copyright 
works is governed by the principle of lex loci contractus (the ‘unitary theory’ 
(Einheitstheorie): see Raue in Dreier and Schulze, UrhG, 8th edn, 2025, intro to § 
120, paragraph 81; OLG München (Higher Regional Court, Munich), MMR 2023, 
974; OLG Hamburg (Higher Regional Court, Hamburg), GRUR-RS 2013, 
16539 – Möbelklassiker; Schricker, Loewenheim, Katzenberger and Metzger, 
Urheberrecht, 6th edn, 2020, intro to § 120, paragraph 152; Nordemann-Schiffel, 
in Fromm and Nordemann, Urheberrecht, 13th edn, 2024, intro to §§ 120 et seq., 
paragraph 83) or the ‘splitting theory’ (Spaltungstheorie) applies, whereby only 
the act giving rise to obligations (titulus) is subject to the lex loci contractus, 
whereas the act of disposal (modus) is subject to the lex loci protectionis (Martiny, 
in Münchener Kommentar zum BGB, 8th edn, 2021, Article 4 of the Rome I 
Regulation, paragraph 252; OLG München (Higher Regional Court, Munich), 
ZUM 1999, 653; Pütz, IPRAax 2005, 13; Staudinger and Magnus, BGB, revised 
edn, 2021, Article 4 of the Rome I Regulation, paragraph 536; Köhlerin, beck 
online Großkommentar, update of 1 December 2014, Article 4 of the Rome I 
Regulation, paragraph 348; von Welser, in Wandtke and Bullinger, Urheberrecht, 
6th edn, 2022, intro to §§ 120 et seq, paragraph 22). The applicability of the lex 
loci contractus is supported by the fact that, under Article 14(1) of the Rome I 
Regulation, the property aspects of the assignment are uniformly governed by the 
contract law that applies to the underlying causal transaction. 
STEIZER 
 
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[…]