Case C‑427/15

NEW WAVE CZ, a.s.

v

ALLTOYS, spol. s r. o.

(Reference for a preliminary ruling from the Nejvyšší soud)

(Reference for a preliminary ruling — Intellectual property — Directive 2004/48/EC — Proceedings concerning an infringement of an intellectual property right — Right of information — Request for information in proceedings — Proceedings linked to the action in which an infringement of an intellectual property right has been found)

Summary — Judgment of the Court (Ninth Chamber), 18 January 2017

Approximation of laws — Enforcement of intellectual property rights — Directive 2004/48 — Right of information in the context of proceedings concerning an infringement of an intellectual property right — Definition — Request for information made in separate proceedings connected with the proceedings in which it was held that that right was infringed — Included

(Charter of Fundamental Rights of the European Union, Arts 17(2) and 47; European Parliament and Council Directive 2004/48, recital 10 and Art. 8(1))

Article 8(1) 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 applying to a situation, such as that at issue in the main proceedings, in which, after the definitive termination of proceedings in which it was held that an intellectual property right was infringed, the applicant in separate proceedings seeks information on the origin and distribution networks of the goods or services by which that intellectual property right is infringed.

In the first place, as regards the wording of Article 8(1) of Directive 2004/48, it must be observed, first, that the expression ‘in the context of proceedings concerning an infringement of an intellectual property right’ cannot be understood as referring solely to proceedings seeking a finding of an infringement of an intellectual property right. The use of that expression does not exclude Article 8(1) from also covering separate proceedings, such as that at issue in the main proceedings, initiated after the definitive termination of proceedings in which it was held that an intellectual property right was infringed. Secondly, it is apparent from the wording of Article 8(1) of Directive 2004/48 that the obligation to provide information is directed not only at the infringer of the intellectual property right in question but also at ‘any other person’ mentioned in indents (a) to (d) of that provision. Those other persons are not necessarily parties to the proceedings in which a finding is sought of an infringement of an intellectual property right. That confirms that the wording of Article 8(1) of Directive 2004/48 cannot be interpreted as being applicable only in such proceedings.

In the second place, that interpretation is also consistent with the objective of Directive 2004/48, which, as recital 10 indicates, is to approximate the legislation of the Member States as regards the means of enforcing intellectual property rights so as to ensure a high, equivalent and homogeneous level of protection in the internal market (judgment of 16 July 2015, Diageo Brands, C‑681/13, EU:C:2015:471, paragraph 71). Such a level of protection might not be ensured if it were not possible also to exercise that right of information in the context of separate proceedings brought after the final termination of an action in which a finding was made of a breach of an intellectual property right, such as that at issue in the main proceedings.

In the third place, it must be recalled that the right of information provided for in Article 8(1) of Directive 2004/48 is a specific expression of the fundamental right to an effective remedy guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union and thereby ensures the effective exercise of the fundamental right to property, which includes the intellectual property right protected in Article 17(2) of the Charter (see, to that effect, judgment of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 29).

(see paras 20, 22-25, 28, operative part)