Bastei Lübbe GmbH & Co. KG v Michael Strotzer.
Date: 2018-10-18
24


In that regard, it is to be remembered that it is not for the Court to rule on the interpretation and applicability of provisions of national law or to establish the facts relevant to a decision in the main proceedings. The Court must take account, under the division of jurisdiction between the EU Courts and the national courts, of the full context, as described in the order for reference, in which the question put to it is set (judgment of 13 June 2013, Kostov, C‑62/12, EU:C:2013:391, paragraph 25). It is irrelevant whether that context is comprised of facts, legislation or case-law.
27


However, the Court notes that, regard being had for the requirements deriving from the unity and coherence of the legal order of the European Union, all of the directives on intellectual property must be interpreted in the light of the rules and principles common to that field (see, to that effect, inter alia, judgment of 30 June 2011, VEWA, C‑271/10, EU:C:2011:442, paragraph 27).
44


The present request for a preliminary ruling thus raises the question of the need to reconcile the requirements of the protection of several fundamental rights, namely the right to an effective remedy and the right to intellectual property, on the one hand, and the right to respect for private and family life, on the other (see, by analogy, judgment of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 33).
45


In that regard, it must be borne in mind, first, that, according to the Court’s case-law, EU law requires that, when transposing directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the EU legal order. Subsequently, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of EU law (judgment of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 34).
46


Second, it should be noted that Article 52(1) of the Charter states, inter alia, that any limitation on the exercise of the rights and freedoms recognised by the Charter must respect the essence of those rights and freedoms and that it is apparent from the case-law of the Court that a measure which results in serious infringement of a right protected by the Charter is to be regarded as not respecting the requirement that such a fair balance be struck between the fundamental rights which must be reconciled (judgment of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 35).
51


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).
54


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).