Opinion of the Advocate General — ECLI:EU:C:2011:753
Date: 2011-11-17
Language of the case: Swedish
Subject matter: Intellectual, industrial and commercial property;Telecommunications;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 1. Approximation of laws — Retention of data generated or processed as part of the provision of publicly available electronic communications services or of public communications networks — Directive 2006/24 — Scope — Infringement of copyright by means of the internet (European Parliament and Council Directives 2002/58, 2004/48, Arts 8 and 15, and 2006/24) 2. Approximation of laws — Telecommunications sector — Processing of personal data and protection of privacy in the electronic communications sector — Directive 2002/58 — Enforcement of intellectual property rights — Directive 2004/48 — Infringement of copyright by means of the internet (European Parliament and Council Directives 2002/58 and 2004/48) 1. Directive 2006/24 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) must be interpreted as not precluding the application of national legislation based on Article 8 of Directive 2004/48 on the enforcement of intellectual property rights which, in order to identify an internet subscriber or user, permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP (internet protocol) address which was allegedly used in an infringement, since that legislation does not fall within the material scope of Directive 2006/24. Firstly, it follows from a combined reading of Article 11 of and recital 12 in the preamble to Directive 2006/24 that that directive constitutes a special and restricted set of rules, derogating from and replacing Directive 2002/58, which is general in scope, and, in particular, Article 15(1) thereof. Secondly, the national legislation concerned pursues an objective different from that pursued by Directive 2006/24. It concerns the communication of data, in civil proceedings, in order to obtain a declaration that there has been an infringement of intellectual property rights, while Directive 2006/24 deals exclusively with the handling and retention of data generated or processed by the providers of publicly available electronic communications services or public communications networks for the purpose of the investigation, detection and prosecution of serious crime and their communication to the competent national authorities. That the Member State concerned has not yet transposed Directive 2006/24, despite the period for doing so having expired, is in this respect irrelevant. (see paras 40, 43, 44, 46, 61, operative part) 2. Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) and Directive 2004/48 on the enforcement of intellectual property rights must be interpreted as not precluding the application of national legislation which, in order to identify an internet subscriber or user, permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP (internet protocol) address which was allegedly used in an infringement, in so far as that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality. When transposing those directives into national law, it is for the Member States to ensure that they rely on an interpretation of those directives that allows a fair balance to be struck between the various fundamental rights protected by the European Union legal order. Furthermore, when implementing the measures transposing those directives, the authorities and courts of Member States must not only interpret their national law in a manner consistent with them, but must also make sure that they do not rely on an interpretation of them which would conflict with those fundamental rights or with the other general principles of European Union law, such as the principle of proportionality. (see paras 56, 61, operative part)