EU law, in particular, Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as precluding national legislation that, on the one hand, subjects exemption from payment of the private copying levy for producers and importers of devices and media intended for use clearly unrelated to private copying to the conclusion of agreements between an entity which has a legal monopoly on the representation of the interests of authors of works, and those liable to pay compensation, or their trade associations, and, on the other hand, provides that the reimbursement of such a levy, where it has been unduly paid, may be requested only by the final user of those devices and media.

A system for financing fair compensation is compatible with the requirements of a ‘fair balance’, referred to in recital 31 of Directive 2001/29, between the rights and interests of authors, who are the recipients of the fair compensation, on the one hand, and those of users of protected subject matter, on the other, only if the digital reproduction equipment, devices and media concerned are liable to be used for private copying and, therefore, are likely to cause harm to the author of the protected work. Furthermore, the exceptions provided for in Article 5 of Directive 2001/29 must be applied in a manner consistent with the principle of equal treatment, affirmed in Article 20 of the Charter of Fundamental Rights of the European Union, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. Member States may not therefore lay down detailed fair compensation rules that would discriminate, unjustifiably, between the different categories of economic operators marketing comparable goods covered by the private copying exception or between the different categories of users of protected subject matter. That is the case as regards national legislation, which does not contain any generally applicable provision exempting from payment of the private copying levy producers and importers who show that the devices and media were acquired by persons other than natural persons, for purposes clearly unrelated to private copying, and which merely imposes an obligation to use best endeavours on a private entity, which is required only to ‘promote’ the conclusion of agreement protocols with persons required to pay the private copying levy. It follows that producers and importers in comparable situations may be treated differently, depending on whether or not they have concluded an agreement protocol with that entity. Furthermore, since the conclusion of those protocols is left to free bargaining between, on the one hand, that entity and, on the other, persons required to pay fair compensation, or their trade associations, the view must be taken, even if such protocols are concluded with all persons entitled to claim an exemption from payment of the private copying levy, that there is no guarantee that producers and importers in comparable situations will be treated equally, the terms of such agreements being the result of negotiation governed by private law.

Moreover, as is apparent from recital 31 of Directive 2001/29, a fair balance must be safeguarded between the rightholders and the users of protected subject matter. A fair compensation system must, therefore, contain mechanisms, in particular for reimbursement, which are designed to correct any situation where overcompensation occurs to the detriment of particular categories of users, which would not be compatible with the requirement set out in that recital. In that regard, such a right to reimbursement cannot be regarded as effective, since it is common ground that it is not open to natural persons, even where they acquire devices and media for purposes clearly unrelated to private copying.

(see paras 29, 42, 44, 45, 47, 49, 54-56 and operative part)