Microsoft Mobile Sales International Oy and Others v Ministero per i beni e le attività culturali (MiBAC) and Others.
Date: 2016-09-22
18


It must be borne in mind in that regard that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a 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 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 (see, in particular, judgments of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 21, and 12 November 2015, Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraph 24).
19


The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated 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 (see, in particular, judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25, and 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 30).
22


Such a plea of inadmissibility must be rejected. Even if the question raised is materially identical to a question which has already been the subject of a preliminary ruling in a similar case, that fact in no way prohibits a national court from referring a question to the Court for a preliminary ruling and does not result in the inadmissibility of the question raised (see, to that effect, judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraphs 13 and 15; 2 April 2009, Pedro IV Servicios, C‑260/07, EU:C:2009:215, paragraph 31, and 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 49).
26


As is apparent from recitals 35 and 38 of Directive 2001/29, Article 5(2)(b) of that directive reflects the EU legislature’s intention of establishing a specific compensation scheme which is triggered by the existence of harm caused to rightholders, which gives rise, in principle, to the obligation to ‘compensate’ them (judgment of 9 June 2016, EGEDA and Others, C‑470/14, EU:C:2016:418, paragraph 19 and the case-law cited).
27


Inasmuch as Directive 2001/29 does not expressly address the various elements of the fair compensation system, the Member States enjoy broad discretion in determining who is to pay that compensation. The same is true of the form, detailed arrangements and possible level of such compensation (see, to that effect, judgment of 11 July 2013, Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, point 20 and the case-law cited).
28


As is apparent from the case-law of the Court, in order to comply with Article 5(2)(b) of Directive 2001/29, fair compensation and, therefore, the system on which it is based, must be linked to the harm resulting for the rightholder from the making of copies for private use (see, to that effect, judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 21 and the case-law cited).
29


Accordingly, 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. There is therefore, having regard to those requirements, a necessary link between the application of the private copying levy to those digital reproduction devices and media and their use for private reproduction (see, to that effect, judgment of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 52).
30


In the second place, it must be noted that the Court has held that, since the person who has caused harm to the holder of the exclusive right of reproduction is the person who, for his private use, reproduces a protected work without seeking prior authorisation from that rightholder, it is, in principle, for that person to make good the harm relating to that copying by financing the compensation to be paid to that rightholder (judgments of 21 October 2010, Padawan, C‑467/08,EU:C:2010:620, paragraph 45; 16 June 2011, Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 26, and 11 July 2013, Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 23).
31


The Court has however accepted that, given the practical difficulties in identifying private users and obliging them to compensate the holders of the exclusive right of reproduction for the harm caused to them, it is open to the Member States to establish a ‘private copying levy’ for the purposes of financing fair compensation, chargeable not to the private persons concerned but to those who have the reproduction equipment, devices and media and who, on that basis, in law or in fact, make that equipment available to private users. Under such a system, it is the persons having that equipment who must discharge the private copying levy (see, to that effect, judgments of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 46; 16 June 2011, Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 27, and 11 July 2013, Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 24).
32


Accordingly, the Member States may, under certain conditions, apply the private copying levy indiscriminately with regard to recording media suitable for reproduction, including where the final use of such media does not meet the criteria set out in Article 5(2)(b) of Regulation No 2001/29 (see judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 44).
33


The Court has, further, pointed out that, since that system enables the persons responsible for payment to pass on the amount of the private copying levy in the price charged for making the reproduction equipment, devices and media available, or in the price for the copying service supplied, 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 the holders of the exclusive right of reproduction and those of the users of the protected subject matter (see, to that effect, judgments of 16 June 2011, Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 28, and 11 July 2013, Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 25).
34


Nonetheless, the Court has held that a system for the application of such a levy will be consistent with Article 5(2)(b) of Directive 2001/29 only if its introduction is justified by practical difficulties and if the persons responsible for payment have a right to reimbursement of the levy where it is not due (see, to that effect, judgments of 11 July 2013, Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 31, and 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 45).
35


In that regard, a private copying levy system may be justified by, inter alia, the need to address the fact that it is impossible to identify the final users or the practical difficulties associated with identifying those users or other similar difficulties (judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 46 and the case-law cited).
36


However, it is apparent from the Court’s case-law that, in any event, that levy must not be applied to the supply of reproduction equipment, devices and media to persons other than natural persons for purposes clearly unrelated to private copying (judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 47 and the case-law cited).
37


Moreover, such a system must provide for a right to reimbursement of the private copying levy which is effective and does not make it excessively difficult to obtain repayment of the levy paid. In that regard, the scope, the effectiveness, the availability, the public awareness and simplicity of use of the right to reimbursement allow for the correction of any imbalances created by the private copying levy system, in order to respond to the practical difficulties observed (see, to that effect, judgments of 11 July 2013, Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 36, and 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 52).
44


However, the Court has noted that 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, according to the Court’s established case-law, 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 (judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraphs 31 and 32 and the case-law cited).
45


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 (judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 33 and the case-law cited).
52


In that regard, it suffices to note, as the Advocate General observed in points 58 and 59 of his opinion, that while it is true that the Court held in its judgment of 5 March 2015, Copydan Båndkopi (C‑463/12, EU:C:2015:144, paragraph 55) that EU law does not preclude a system of fair compensation which provides for a right to reimbursement of the private copying levy for the final user of the devices or media subject to the levy, it observed that such a system is compatible with EU law only if the persons responsible for payment are exempt, in accordance with EU law, from payment of that levy if they establish that they have supplied the devices and media in question to persons other than natural persons for purposes clearly unrelated to private copying.
54


Moreover, it must be recalled that, 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. According to the Court’s case-law, 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 (see, by analogy, judgment of 12 November 2015, Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraphs 85 and 86).
59


In that connection, it should be recalled that, according to settled case-law of the Court, the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the courts having jurisdiction are satisfied (see, inter alia, judgments of 17 February 2005, Linneweber and Akritidis, C‑453/02 and C‑462/02, EU:C:2005:92, paragraph 41; 6 March 2007, Meilicke and Others, C‑292/04, EU:C:2007:132, paragraph 34, and 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 40).
60


It is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely, that those concerned should have acted in good faith and that there should be a risk of serious difficulties (see, inter alia, judgments of 10 January 2006, Skov and Bilka, C‑402/03, EU:C:2006:6, paragraph 51; 3 June 2010, Kalinchev, C‑2/09, EU:C:2010:312, paragraph 50, and 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 41).
61


More specifically, the Court has taken that step only in quite specific circumstances, notably where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with EU law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the European Commission may even have contributed (judgment of 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 42 and the case-law cited).
62


In the present case, as regards the first criterion, it must be noted that, in judgment of 21 October 2010, Padawan (C‑467/08, EU:C:2010:620, paragraph 53), the Court had already ruled on the compatibility of EU law of a system providing for the indiscriminate application of the private copying levy to all types of digital reproduction devices and media, including in the event that they are acquired by persons other than natural persons for purposes clearly unrelated to private copying. Under those circumstances, the SIAE may not claim that it was satisfied that the legislation at issue in the main proceedings complied with EU law because of the lack of objection on the part of the Commission as to the compatibility of that legislation with EU law.