62024CJ0822
JUDGMENT OF THE COURT (Eighth Chamber)
15 January 2026 (
*1
)
(Reference for a preliminary ruling – Copyright and related rights – Harmonisation of certain aspects of copyright and related rights in the information society – Directive 2001/29/EC – Article 2 – Reproduction right – Article 5 – Exceptions and limitations – Fair compensation for private copying – National legislation providing for payment of such compensation by manufacturers, importers and traders of storage media that may be used for making reproductions and are intended for commercial end users – Obligation based on the rebuttable presumption that use of such storage devices is for the purposes of private copying – Whether permissible)
In Case C‑822/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 26 September 2024, received at the Court on 3 December 2024, in the proceedings
bluechip Computer Aktiengesellschaft
v
Zentralstelle für private Überspielungsrechte (ZPÜ),
THE COURT (Eighth Chamber),
composed of O. Spineanu-Matei (Rapporteur), President of the Chamber, S. Rodin and N. Fenger, Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–
bluechip Computer Aktiengesellschaft, by M. Kianfar and J. Schäfer, Rechtsanwälte,
–
the Zentralstelle für private Überspielungsrechte (ZPÜ), by D. Kögel, Rechtsanwalt,
–
the German Government, by J. Möller, M. Hellmann and A. Sahner, acting as Agents,
–
the French Government, by B. Dourthe and B. Herbaut, acting as Agents,
–
the Italian Government, by S. Fiorentino, acting as Agent, and by V. Pilloni, procuratore dello Stato, and D.G. Pintus, avvocato dello Stato,
–
the Hungarian Government, by D. Csoknyai and Z. Fehér, acting as Agents,
–
the Netherlands Government, by M.K. Bulterman and J.M. Hoogveld, acting as Agents,
–
the Austrian Government, by A. Posch and J. Schmoll, acting as Agents,
–
the Portuguese Government, by C. Alves, P. Barros da Costa and M. Martins da Cruz, acting as Agents,
–
the European Commission, by G. von Rintelen and J. Samnadda, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1
This request for a preliminary ruling concerns the interpretation of Article 5(2)(b) 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 (OJ 2001 L 167, p. 10).
2
The request has been made in proceedings between the Zentralstelle für private Überspielungsrechte (‘the ZPÜ’) and bluechip Computer Aktiengesellschaft (‘bluechip’) concerning the payment of remuneration with the purpose of financing fair compensation for the making of copies for private use.
Legal context
European Union law
3
Recitals 31, 35 and 38 of Directive 2001/29 are worded as follows:
‘(31)
A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.
…
(35)
In certain cases of exceptions or limitations, rightholders should receive fair compensation to compensate them adequately for the use made of their protected works or other subject matter. When determining the form, detailed arrangements and possible level of such fair compensation, account should be taken of the particular circumstances of each case. When evaluating these circumstances, a valuable criterion would be the possible harm to the rightholders resulting from the act in question. In cases where rightholders have already received payment in some other form, for instance as part of a licence fee, no specific or separate payment may be due. The level of fair compensation should take full account of the degree of use of technological protection measures referred to in this Directive. In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise.
…
(38)
Member States should be allowed to provide for an exception or limitation to the reproduction right for certain types of reproduction of audio, visual and audio-visual material for private use, accompanied by fair compensation. This may include the introduction or continuation of remuneration schemes to compensate for the prejudice to rightholders. Although differences between those remuneration schemes affect the functioning of the internal market, those differences, with respect to analogue private reproduction, should not have a significant impact on the development of the information society. Digital private copying is likely to be more widespread and have a greater economic impact. Due account should therefore be taken of the differences between digital and analogue private copying and a distinction should be made in certain respects between them.’
4
Article 2 of that directive, entitled ‘Reproduction right’, stipulates:
‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a)
for authors, of their works;
(b)
for performers, of fixations of their performances;
(c)
for phonogram producers, of their phonograms;
(d)
for the producers of the first fixations of films, in respect of the original and copies of their films;
(e)
for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.’
5
Article 5 of that directive, entitled ‘Exceptions and limitations’, states, in paragraph 2:
‘Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
…
(b)
in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or [subject matter] concerned;
…’
German law
6
Paragraph 53 of the Gesetz über Urheberrecht und verwandte Schutzrechte – Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965 (BGBl. 1965 I, p. 1273), in the version applicable to the dispute in the main proceedings (‘the UrhG’), entitled ‘Reproductions for private use and other personal use’, provided:
‘(1)   Any natural person shall be permitted to make single copies of a work for private use on any medium, provided that they do not serve any commercial purpose either directly or indirectly and provided that they are not copied from an obviously unlawfully produced model or a model which has been unlawfully made available to the public. …
…’
7
Paragraph 54 of the UrhG, entitled ‘Obligation to pay compensation’, provided:
‘(1)   Where, given the nature of a work, it is likely that the work will be reproduced by virtue of Paragraph 53(1) to (3), the author of the work shall be entitled to receive fair remuneration from the manufacturer of devices and storage media of the type used, whether alone or in combination with other devices, storage media or accessories, to make such reproductions.’
(2)   The entitlement under subparagraph 1 is lost where, in the light of the circumstances, it is probable that the devices or storage media will not be used for the purposes of making reproductions within the scope of the present law.’
8
Paragraph 54b of the UrhG, entitled ‘Obligation of the trader or importer to pay compensation’, provided:
‘(1)   Any person commercially importing or reimporting the devices or storage media into the territory where the present law applies or any person trading in those devices or storage media shall be jointly and severally liable along with the manufacturer. …
…’
The dispute in the main proceedings and the question referred for a preliminary ruling
9
The ZPÜ is an association of German collecting societies established under law which are entitled to assert claims for levies based in copyright for the reproduction of audio and audiovisual works. bluechip is a company which manufactures, imports and trades in PCs, notebooks and workstations with a built-in hard drive.
10
The ZPÜ brought an action seeking, in essence, that bluechip be ordered to pay, for each type of device referred to above and placed on the market between 1 January 2014 and 31 December 2017, remuneration intended to finance fair compensation laid down in Paragraph 54 of the UrhG, relying on rates set out in collective management contracts that it entered into for that purpose jointly alongside other societies made up of professionals in the telecommunications sector as well as in the sectors for electrical and electronic equipment.
11
The Oberlandesgericht (Higher Regional Court, Germany), by partial ruling of 1 December 2023, held that, since the devices sold by bluechip to commercial end users could technically be used to make copies of works protected by copyright for private use, it had to be presumed, on a rebuttable basis, that such copies would be made, with the consequence that a legal person such as bluechip was obliged, by virtue of Paragraphs 54 and 54b of the UrhG, to pay the remuneration intended to finance fair compensation to which authors are entitled in exchange for those copies.
12
Having found that bluechip had not provided any evidence to rebut that presumption, that court ordered bluechip, inter alia, to pay to the ZPÜ, for each type of device sold or placed on the market in Germany between 1 January 2014 and 31 December 2017, that remuneration, calculated on the basis of the rates set out in the collective management contracts referred to above, unless bluechip succeeded in presenting evidence to prove, in particular, that the devices in question are clearly limited to purposes other than the making of copies for private use and that it is at most on a minimal scale that such copies have actually been made and are made in the normal course of events.
13
bluechip has brought an appeal on a point of law (Revision) against that judgment before the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court.
14
That court points out that, under Article 5(2)(b) of Directive 2001/29, transposed into German law inter alia by Paragraph 54 of the UrhG, Member States may provide for exceptions or limitations to the exclusive reproduction right provided for in Article 2 of that directive in favour of copyright and related rights holders. In particular, Member States may provide for such exceptions and limitations where reproductions are made by natural persons for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation.
15
Whilst recalling that, in the case of storage media that may be used to make such reproductions, that compensation may, where practical difficulties exist in determining such private use and in identifying the end user, be claimed from manufacturers, importers or traders who, like bluechip, have the possibility to pass the burden on to end users, the referring court finds that those customers may include, inter alia, natural and legal persons having ordered such devices for professional or commercial purposes. In the normal course of events, it cannot be precluded that those devices are, in a professional or commercial environment, used for private copying or that those natural or legal persons replace them with new devices at the end of the fiscal depreciation period and that those persons sell them on the used appliances market in order for buyers to use them for private copying.
16
The referring court adds that, account being taken of the existence of such practical difficulties, if the payment of fair compensation were not imposed on manufacturers, importers or traders such as bluechip, it would not be guaranteed that rightholders receive compensation for the loss suffered through the making of copies for private use, and, accordingly, it would also not be guaranteed that compensation would actually be collected. That court is inclined to take the view that it is apparent from the case-law of the Court that it is permissible to rely on a rebuttable presumption that storage media, such as those sold by bluechip, are used for private use and for ends that are neither directly nor indirectly commercial, within the meaning of Article 5(2)(b) of Directive 2001/29, so that fair compensation may be claimed from those manufacturers, importers or traders.
17
That court states that, when determining whether the remuneration at issue before it is payable, the sellers of storage media that may be used to make reproductions for private use may present evidence to the effect that, in the normal course of events, it seems impossible that those media will be used to make copies or that it is at the very least unlikely that they will be used in such a way on a scale other than minimal. To that end, those sellers may, inter alia, present a written declaration by which the commercial end user declares that he or she will not use the acquired medium other than for his or her professional activity.
18
To impose an obligation to pay fair compensation on sellers such as bluechip, with a rebuttable presumption that there is private use of storage media that may be used for making reproductions, is furthermore in line with the case-law of the Court according to which Member States enjoy broad discretion with regard to determining the persons who must pay that compensation and with regard to its form, detailed arrangements and level, on condition that those Member States ensure that such a presumption does not lead to that compensation being imposed in cases where the end use of the media in question clearly does not fall within the scenario referred to in Article 5(2)(b) of Directive 2001/29.
19
That said, given the possible divergence of case-law in the interpretation of that provision in Germany and in Austria, the referring court deems it necessary, in order to resolve the dispute before it, to obtain an interpretation of that provision by the Court.
20
In those circumstances the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is it compatible with Article 5(2)(b) of Directive [2001/29] for national legislation to require manufacturers, importers or traders who sell storage media to commercial end customers (legal persons or natural persons who – in a manner discernible by the manufacturer, importer or trader – place orders as end users for commercial purposes) to pay remuneration to finance the fair compensation for the exception to the reproduction right in respect of reproduction for private use, unless such manufacturers, importers or traders prove, in accordance with the rules of national law, that reproductions of a work made with the aid of those devices were in fact made, at the very most, on a small scale by a natural person for private use on any medium, or are made in the normal course of events?’
Consideration of the question referred
21
By its question, the referring court asks, in essence, whether Article 5(2)(b) of Directive 2001/29 must be interpreted as precluding a national rule according to which manufacturers, importers and traders of storage media that may be used for making reproductions are obliged to pay the fair compensation laid down in that provision where those media are sold to commercial end users, except where those manufacturers, importers or traders establish that those media are not used by natural persons in order to make reproductions for private use and for ends that are neither directly nor indirectly commercial, or are used in such a way solely on a scale regarded as not causing more than minimal harm to rightholders.
22
In that regard, it should be borne in mind that, under Article 2 of Directive 2001/29, Member States are to grant to the rightholders referred to in that provision the exclusive right to authorise or prohibit direct or indirect, temporary or permanent, reproduction by any means and in any form, in whole or in part, of their works, of fixations of their performances, of their phonograms, of the original and copies of their films and of fixations of their broadcasts.
23
Article 5(2)(b) of Directive 2001/29 in turn provides that Member States may provide for exceptions or limitations to the exclusive reproduction right provided for in Article 2 of that directive, in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 of that directive to the work or subject matter concerned.
24
It must, moreover, be recalled that, according to its wording, Article 5(2)(b) of Directive 2001/29 does not permit Member States to provide for fair compensation unless the reproduction equipment, devices or media are used by ‘natural persons’ as end users ‘for private use and for ends that are neither directly nor indirectly commercial’. It follows that the scope of that provision depends, inter alia, on the type of end user and the purpose of the use (see, to that effect, judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 83).
25
As is apparent from recitals 35 and 38 of Directive 2001/29, Article 5(2)(b) reflects the EU legislature’s intention to establish a specific system of compensation which is triggered by the existence of harm caused for rightholders, which gives rise, in principle, to the obligation to ‘compensate’ them. Copying by natural persons acting in a private capacity must be regarded as an act likely to cause harm to the rightholder concerned, since it is done without seeking prior authorisation from that rightholder. It is, however, by no means necessary that those persons actually make copies for private ends, given that those persons are rightly presumed to benefit fully from the availability of reproduction equipment, devices and media, with this being sufficient, due to the capacity of that equipment, those devices and those media to make reproductions, to justify applying the fair compensation provided to rightholders. The Court has pointed out in that regard that Member States may establish a rebuttable presumption that such equipment, devices and media are made available to natural persons for private use (see, to that effect, judgments of 11 July 2013, Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 43; of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraphs 24 and 25; of 8 September 2022, Ametic, C‑263/21, EU:C:2022:644, paragraph 35 and the case-law cited; and of 23 November 2023, Seven.One Entertainment Group, C‑260/22, EU:C:2023:900, paragraph 33 and the case-law cited).
26
It thus follows from settled case-law that fair compensation and, therefore, the system on which it is based, as well as the level of compensation, must be linked to the harm resulting for the rightholders from the making of copies for private use. Any fair compensation that is not linked to the harm caused to rightholders as a result of such copying would not be compatible with the requirement, set out in recital 31 of Directive 2001/29, that a fair balance must be safeguarded between the rightholders and the users of protected subject matter (judgment of 23 November 2023, Seven.One Entertainment Group, C‑260/22, EU:C:2023:900, paragraph 37 and the case-law cited).
27
Furthermore, the Court has already held that, if Article 5(2)(b) of Directive 2001/29 is not to be devoid of all practical effect, that provision must be regarded as imposing an obligation to achieve a certain result upon the Member States which have implemented the private copying exception, in the sense that they must guarantee, within the framework of their competences, the actual recovery of the fair compensation intended to compensate the rightholders (judgment of 9 June 2016, EGEDA and Others, C‑470/14, EU:C:2016:418, paragraph 21 and the case-law cited).
28
Since Directive 2001/29 does not provide any further details concerning the various elements of the system of fair compensation, the Member States enjoy a broad discretion in that regard. In particular, it falls to the Member States to determine the persons who must pay that compensation and to establish the form, detailed arrangements and level thereof (judgment of 8 September 2022, Ametic, C‑263/21, EU:C:2022:644, paragraph 36 and the case-law cited). When determining the form, detailed arrangements and possible level of fair compensation, it is for the Member States, as is apparent from recital 35 of Directive 2001/29, to take account of the particular circumstances of each case and, in particular, of the possible harm to the rightholders (judgment of 23 November 2023, Seven.One Entertainment Group, C‑260/22, EU:C:2023:900, paragraph 36).
29
Given the practical difficulties in identifying private users and obliging them to compensate holders of the exclusive right of reproduction for the harm caused to those rightholders by those users, it is open to the Member States to establish, in order to finance that fair compensation, a ‘private copying levy’, the payment of which is charged prior to private copying, not to the private persons concerned but to those persons, including legal persons, who have reproduction equipment, devices and media and who, on that basis, in law or in fact, make these available to private users. Under such a system, it is for the persons having such equipment, devices and media to pay the private copying levy. Accordingly, the Member States may, under certain conditions, apply the private copying levy indiscriminately with regard to recording media that may be used for reproduction, including where the final use of such media does not meet the criteria set out in Article 5(2)(b) of Directive 2001/29 (see, to that effect, judgments of 9 June 2016, EGEDA and Others, C‑470/14, EU:C:2016:418, paragraphs 32 and 33, and of 8 September 2022, Ametic, C‑263/21, EU:C:2022:644, paragraph 37 and the case-law cited).
30
Since such a system enables the persons liable for payment to pass on the amount of the private copying levy in the price charged for making such equipment, devices or media available, the burden of the levy will ultimately be borne by the private user who pays that price, in a way consistent with the ‘fair balance’, referred to in recital 31 of Directive 2001/29, between the interests of holders of the exclusive right of reproduction and those of users of protected subject matter (judgment of 8 September 2022, Ametic, C‑263/21, EU:C:2022:644, paragraph 38 and the case-law cited).
31
It must, however, be borne in mind that, where Member States opt for such financing which is justified by practical difficulties, such as the impossibility of identifying private end users, they must also provide for an exemption scheme or, failing that, a right to reimbursement, to the benefit of those actually liable for the compensation, be it manufacturers, importers or traders of reproduction equipment, devices or media, or end users, where the compensation is not chargeable, as it is in particular the case where such equipment, devices or media are supplied to persons other than natural persons, for purposes clearly unrelated to the making of copies for private use (see, to that effect, judgments of 11 July 2013, Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 31; of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraphs 45, 47, 50 and 53; of 9 June 2016, EGEDA and Others, C‑470/14, EU:C:2016:418, paragraphs 36 and 40; of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraphs 34 and 36; and of 8 September 2022, Ametic, C‑263/21, EU:C:2022:644, paragraph 39).
32
The right to reimbursement provided for to that effect must be effective and must not make it excessively difficult to refund the levy paid. In that regard, the scope, the effectiveness, the availability, the public awareness and the simplicity of exercising the right to reimbursement must allow for the correction of any imbalances created by the private copying levy system, in order to respond to the practical difficulties observed (judgments of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraph 37 and the case-law cited, and of 8 September 2022, Ametic, C‑263/21, EU:C:2022:644, paragraph 45 and the case-law cited).
33
Lastly, the Court has held that Member States may elect, in certain cases covered by the exception which they have chosen to establish on the basis of Article 5(2)(b) of Directive 2001/29 and in accordance with the principle of equal treatment, to provide for an exemption from payment of fair compensation where the harm caused to rightholders is minimal, with the setting of the threshold below which the harm may be classified as minimal being at the discretion of those Member States (see, to that effect, judgment of 23 November 2023, Seven.One Entertainment Group, C‑260/22, EU:C:2023:900, paragraphs 38 to 40 and the case-law cited).
34
It is in the light of that body of case-law that the question referred by the national court must be examined.
35
In the present case, it is apparent from the explanations provided by that court that the legislation at issue in the main proceedings, as interpreted by the national courts, provides that fair compensation is payable by manufacturers, importers or traders which, like bluechip, sell storage media that may be used for making reproductions (‘the storage media’) to commercial end users, who may be legal persons or natural persons. It is also apparent, in essence, from the explanations of that court that it is conceivable that the media thus purchased by those commercial end users may be used for purposes other than the one referred to in Article 5(2)(b) of Directive 2001/29, that is to say, not ‘for private use and for ends that are neither directly nor indirectly commercial’, or that such use is made of them and for such ends but only to a limited extent.
36
In accordance with the case-law referred to in paragraphs 29 and 31 to 33 of the present judgment, fair compensation can only be imposed on sellers of storage media where two cumulative conditions are satisfied. First, such a system must be justified by practical difficulties, such as difficulties in identifying end users and in identifying the purpose for which the reproductions made with those media are used. Second, where it is established that end users use those media for purposes clearly other than the making of copies for private use or, at the very least, do not cause more than minimal harm to rightholders through the use of those media for private use and for ends neither directly nor indirectly commercial, those sellers must benefit from an exemption from fair compensation or, failing that, from an effective right to reimbursement which may not be organised in a manner so as to make repayment of that compensation excessively difficult.
37
The referring court will therefore have to ascertain whether the legislation at issue in the main proceedings fulfils those two conditions, though the Court, when giving a preliminary ruling, may give clarifications to guide the national court in its decision (judgment of 5 May 2022, Victorinox, C‑179/21, EU:C:2022:353, paragraph 49 and the case-law cited).
38
As concerns, first, the existence of practical difficulties in identifying end users and the purpose for which the reproductions made with storage media such as those at issue in the main proceedings are used, it must be stated that such practical difficulties of identification exist where those media are sold to commercial end users.
39
It cannot simply be deduced from the status as ‘commercial end user’ that storage media will never be used by natural persons for private use and for ends that are neither directly nor indirectly commercial, within the meaning of Article 5(2)(b) of Directive 2001/29, and that no harm other than minimal will be caused to rightholders.
40
It must be observed that, in the present case, the commercial end users include both natural persons and legal persons who order storage media for commercial or professional ends. However, even where such media are purchased by legal persons, they, in principle, can only be used by natural persons to whom those media have been made available. Thus, only natural persons can, in any case, be end users of storage media bought by commercial end users and it is of little importance, in order to determine whether fair compensation is payable, that the natural persons who use such media did not buy them themselves or do not own the media. Fair compensation is also payable where natural persons may make reproductions of protected works by or with the aid of a device which belongs to a third party (see, to that effect, judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 91).
41
Furthermore, in accordance with the case-law referred to in paragraph 25 of the present judgment, the natural persons in question, irrespective of whether they are both purchasers and end users or whether they are merely end users because storage media were made available to them by a commercial end user, are rightly presumed to make full use of those media, including the making of reproductions for private use and for ends neither directly nor indirectly commercial. The Court has already held in that regard that Article 5(2)(b) of Directive 2001/29 does not preclude national legislation that establishes such a presumption, provided that that presumption is rebuttable (see, to that effect, judgment of 11 July 2013, Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraphs 43 and 45).
42
In those circumstances, it may be difficult to determine, at the time of the sale of storage media to commercial end users, whether the natural person who will have those media at his or her disposal, either because that person has purchased them him- or herself for commercial or professional ends or because the media have been made available to him or her, for professional purposes, by the commercial end user, will only use those media for ends that are clearly unrelated to the end of making copies for private use or whether that person will also use the media for private use and for ends neither directly nor indirectly commercial, and on a scale that will not be considered as causing no more than minimal harm to rightholders.
43
In particular, it cannot be ruled out, as the referring court observes, that storage media are used, in a professional context, on a scale other than minimal by natural persons for such a use and for such ends, nor can it be ruled out that those media are, before the end of their average lifespan, for example at the end of their fiscal depreciation period, made available to natural persons who will then use them for private use and for ends neither directly nor indirectly commercial. Moreover, the self-employed, as natural persons who make orders for commercial or professional purposes, may use storage media such as those at issue in the main proceedings both professionally and in a private capacity.
44
It will be for the referring court to ascertain whether, in the light of the above, practical difficulties exist in the present case in identifying the purpose for which storage media are used by the natural persons for whom they are intended.
45
Second, the referring court will have to determine, in accordance with the case-law referred to in paragraph 31 of the present judgment, whether manufacturers, importers and traders of storage media that may be used for making reproductions, such as bluechip, may be exempted from paying fair compensation if they present evidence that those media will be used by natural persons for purposes other than the one set out in Article 5(2)(b) of Directive 2001/29 or that they may at the very least obtain reimbursement of compensation unduly paid where that evidence can only be presented after the sales transaction and payment of that compensation.
46
In that regard, that provision does not preclude a system for collecting compensation for private copying, as observed by the referring court, which provides inter alia that such a manufacturer, importer or trader may present a written declaration from the commercial end user by which the latter declares, in essence, that the storage media will be used for ends clearly unrelated to the making of copies for private use or that they will be used, on a scale liable to not cause more than minimal harm to rightholders, for private use and for ends neither directly nor indirectly commercial. Consequently, a seller such as bluechip seems able easily to be exempted from the payment of fair compensation.
47
The Court has further confirmed that such unilateral declarations may be used for the purposes of such an exemption, provided that there is, in the Member State concerned, a possibility, for the entity responsible for the management of that fair compensation, to check the veracity of the declarations in question in such a way as to ensure effective collection of the compensation (see, to that effect, judgment of 8 September 2022, Ametic, C‑263/21, EU:C:2022:644, paragraphs 42 and 70).
48
Moreover, national legislation providing for a system for the exemption of payment of fair compensation by way of such declarations should, in any event, in accordance with the case-law referred to in paragraph 32 of the present judgment, provide for a right to reimbursement of any unduly paid compensation, which must be effective and not be organised in such a way as to make the repayment of the compensation paid excessively difficult.
49
In the light of the foregoing considerations, the answer to the question referred is that Article 5(2)(b) of Directive 2001/29 must be interpreted as not precluding a national rule according to which manufacturers, importers and traders of storage media that may be used for making reproductions are obliged to pay the fair compensation laid down in that provision where those media are sold to commercial end users, except where those manufacturers, importers or traders establish that those media are not used by natural persons in order to make reproductions for private use and for ends that are neither directly nor indirectly commercial, or are used in such a way solely on a scale regarded as not causing more than minimal harm to rightholders.
Costs
50
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
Article 5(2)(b) 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
must be interpreted as not precluding a national rule according to which manufacturers, importers and traders of storage media that may be used for making reproductions are obliged to pay the fair compensation laid down in that provision where those media are sold to commercial end users, except where those manufacturers, importers or traders establish that those media are not used by natural persons in order to make reproductions for private use and for ends that are neither directly nor indirectly commercial, or are used in such a way solely on a scale regarded as not causing more than minimal harm to rightholders.
[Signatures]
(
*1
)	Language of the case: German.