Opinion of the Advocate General — ECLI:EU:C:2018:400
Date: 2018-06-06
Language of the case: German
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Third Chamber), 18 October 2018 1. EU law — Interpretation — Methods — Interpretation of the directives on intellectual property in the light of the rules and principles common to those directives (European Parliament and Council Directives 2001/29 and 2004/48) 2. Approximation of laws — Enforcement of intellectual property rights — Directive 2004/48 — Obligation for Member States, when transposing directives, to allow a fair balance to be struck between the various fundamental rights protected by the EU legal order –Obligation for national authorities not to rely on an interpretation of those directives in conflict with those fundamental rights or with the other general principles of EU law (Charter of Fundamental Rights of the European Union, Art. 17(2); European Parliament and Council Directive 2004/48) 3. Approximation of laws — Copyright and related rights — Directive 2001/29 — Enforcement of intellectual property rights — Directive 2004/48 — Measures, procedures and remedies — Action for damages for internet file-sharing in breach of copyright — National legislation exempting the owner of an internet connection from the obligation to pay damages if the owner names a family member who may have had access to that connection — No obligation for the owner to specify the nature of the use of the connection by the family member — Not permissible (European Parliament and Council Directives 2001/29, Art. 3(1) and 8(1) and (2) and 2004/48, Art. 3(2)) 1. See the text of the decision. (see para. 27) 2. See the text of the decision. (see paras 44, 45) 3. Article 8(1) and (2) of Directive 2001/29/EC, of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, read in conjunction with Article 3(1) thereof, and Article 3(2) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which, as interpreted by the relevant national courts, the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection, without providing further details as to when and how the internet was used by that family member. It must be held that if, in situations such as those at issue in the main proceedings, national legislation, as interpreted by the relevant national courts, has the effect of creating an obstacle to a national court before which a tortious action has been brought from being able to compel, on application of the claimant, the providing and obtaining of evidence relating to the opposing party’s family members, proving the alleged infringement of copyright and who was responsible for that infringement are rendered impossible, and, consequently, the fundamental rights to an effective remedy and to intellectual property, enjoyed by the holder of the copyright, are seriously infringed, and thereby the requirement to ensure a fair balance between the various fundamental rights in question is not respected (see, by analogy, judgment of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 41). Therefore, by guaranteeing an almost absolute protection for the family members of the owner of an internet connection, through which copyright infringements were committed by means of file-sharing, the national legislation at issue in the main proceedings cannot, contrary to the requirements set by Article 8(1) of Directive 2001/29, be considered to be sufficiently effective and capable of ultimately leading to effective and dissuasive sanctions against the perpetrator of that infringement. Furthermore, the procedure initiated in respect of the remedy at issue in the main proceedings is not capable of ensuring the enforcement of intellectual property rights required by Article 3(1) of Directive 2004/48. In addition, it is, ultimately, for the referring court to determine whether, if applicable, there are, in the national law concerned, any other means, procedures or remedies which would allow the competent judicial authorities to order that information necessary for proving, in circumstances such as those at issue in the main proceedings, an infringement of copyright and who infringed it be provided (see, to that effect, judgment of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 42). (see paras 51, 52, 54, 55, operative part)