Levola Hengelo BV v Smilde Foods BV.
Date: 2018-11-13
27


It must be recalled in that regard that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgments of 10 March 2009, Hartlauer, C‑169/07, EU:C:2009:141, paragraph 24, and of 1 July 2010, Sbarigia, C‑393/08, EU:C:2010:388, paragraph 19).
28


Indeed, it is settled case-law that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 24 June 2008, Commune de Mesquer, C‑188/07, EU:C:2008:359, paragraph 30 and the case-law cited, and of 21 May 2015, Verder LabTec, C‑657/13, EU:C:2015:331, paragraph 29).
33


In that regard, Articles 2 to 4 of Directive 2001/29 state that the Member States are to provide for a set of exclusive rights relating, in the case of authors, to their ‘works’, while Article 5 sets out a series of exceptions and limitations to those rights. The directive makes no express reference to the laws of the Member States for the purpose of determining the meaning and scope of the concept of a ‘work’. Accordingly, in view of the need for a uniform application of EU law and the principle of equality, that concept must normally be given an autonomous and uniform interpretation throughout the European Union (see, to that effect, judgments of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraphs 27 and 28, and of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraphs14 and 15).
34


It follows that the taste of a food product can be protected by copyright under Directive 2001/29 only if such a taste can be classified as a ‘work’ within the meaning of the directive (see, by analogy, judgment of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraph 29 and the case-law cited).
35


In that regard, two cumulative conditions must be satisfied for subject matter to be classified as a ‘work’ within the meaning of Directive 2001/29.
36


First, the subject matter concerned must be original in the sense that it is the author’s own intellectual creation (judgment of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 97 and the case-law cited).
37


Secondly, only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’ within the meaning of Directive 2001/29 (see, to that effect, judgments of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraph 39, and of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 159).
38


It should be recalled in that regard that although the European Union is not a party to the Berne Convention, it is nevertheless obliged, under Article 1(4) of the WIPO Copyright Treaty, to which it is a party and which Directive 2001/29 is intended to implement, to comply with Articles 1 to 21 of the Berne Convention (see, to that effect, judgments of 9 February 2012, Luksan, C‑277/10, EU:C:2012:65, paragraph 59 and the case-law cited, and of 26 April 2012, DR and TV2 Danmark, C‑510/10, EU:C:2012:244, paragraph 29).
39


Under Article 2(1) of the Berne Convention, literary and artistic works include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression may be. Moreover, in accordance with Article 2 of the WIPO Copyright Treaty and Article 9(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which is mentioned in paragraph 6 of this judgment and which also forms part of the EU legal order (see, to that effect, judgment of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraphs 39 and 40), copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such (see, to that effect, judgment of 2 May 2012, SAS Institute, C‑406/10, EU:C:2012:259, paragraph 33).
40


Accordingly, for there to be a ‘work’ as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.
41


That is because, first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity –– given that it is detrimental to legal certainty –– in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner.
42


The taste of a food product cannot, however, be pinned down with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.