Pelham GmbH and Others v Ralf Hütter and Florian Schneider-Esleben.
Date: 2019-07-29
28


Directive 2001/29 does not define the concept of ‘reproduction … in whole or in part’ of a phonogram for the purposes of that provision. The meaning and scope of those words must, as the Court has consistently held, be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (judgment of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 19 and the case-law cited).
32


It must be borne in mind, in that regard, that it follows from recitals 3 and 31 of Directive 2001/29 that the harmonisation effected by that directive aims to safeguard, in particular in the electronic environment, a fair balance between, on the one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property rights now guaranteed by Article 17(2) of the Charter and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter as well as of the public interest (see, to that effect, judgment of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 41).
33


The Court has thus previously held that there is nothing whatsoever in the wording of Article 17(2) of the Charter or in the Court’s case-law to suggest that the intellectual property rights enshrined in that article are inviolable and must for that reason be protected as absolute rights (judgments of 24 November 2011, Scarlet Extended, C‑70/10, EU:C:2011:771, paragraph 43; of 16 February 2012, SABAM, C‑360/10, EU:C:2012:85, paragraph 41; and of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 61).
53


It is true that the provisions of the Geneva Convention do not form part of the EU legal order, in that, first, the European Union is not a contracting party to that convention and, second, the European Union cannot be regarded as having taken the place of its Member States as regards its application, if only because not all of those States are parties to that convention (see, by analogy, judgment of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 41). The fact remains, however, that it is one of the international conventions referred to in paragraph 49 above and therefore the provisions of Directive 2006/115 must be interpreted, so far as possible, in the light of that convention (see, to that effect, judgments of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 35; of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 189; and of 19 December 2018, Syed, C‑572/17, EU:C:2018:1033, paragraph 20).
58


As is clear both from the Explanatory Memorandum to the Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society of 10 December 1997 (COM(97) 628 final) and from recital 32 of Directive 2001/29, the list of exceptions and limitations contained in Article 5 of that directive is exhaustive, as the Court has also pointed out on several occasions (judgments of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 34, and of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 16).
60


The mechanisms allowing those different rights and interests to be balanced are contained in Directive 2001/29 itself, in that it provides inter alia, first, in Articles 2 to 4 thereof, rightholders with exclusive rights and, second, in Article 5 thereof, for exceptions and limitations to those rights which may, or even must, be transposed by the Member States, since those mechanisms must nevertheless find concrete expression in the national measures transposing that directive and in their application by national authorities (see, to that effect, judgment of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 66 and the case-law cited).
61


The Court has repeatedly held that the fundamental rights now enshrined in the Charter, the observance of which the Court ensures, draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories (see, to that effect, judgment of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 35 and the case-law cited).
63


In that context, to allow, notwithstanding the express intention of the EU legislature, set out in paragraph 58 above, each Member State to derogate from an author’s exclusive rights, referred to in Articles 2 to 4 of Directive 2001/29, beyond the exceptions and limitations exhaustively set out in Article 5 of that directive, would endanger the effectiveness of the harmonisation of copyright and related rights effected by that directive, as well as the objective of legal certainty pursued by it (judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 34 and 35). It is expressly clear from recital 31 of that directive that the differences that existed in the exceptions and limitations to certain restricted acts had direct negative effects on the functioning of the internal market of copyright and related rights, since the list of the exceptions and limitations set out in Article 5 of Directive 2001/29 is aimed at ensuring such proper functioning of the internal market.
64


In addition, as is clear from recital 32 of that directive, the Member States are required to apply those exceptions and limitations consistently. The requirement of consistency in the implementation of those exceptions and limitations could not be ensured if the Member States were free to provide for such exceptions and limitations beyond those expressly set out in Directive 2001/29 (see, to that effect, judgment of 12 November 2015, Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraphs 38 and 39), since the Court has moreover previously held that no provision of Directive 2001/29 envisages the possibility for the scope of such exceptions or limitations to be extended by the Member States (see, to that effect, judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 27).
78


In that regard, it should be stated that, by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order, rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law in the territory of that State (judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 59).
79


It should be noted in that connection that, since the transposition of a directive by the Member States is covered, in any event, by the situation, referred to in Article 51 of the Charter, in which the Member States are implementing Union law, the level of protection of fundamental rights provided for in the Charter must be achieved in such a transposition, irrespective of the Member States’ discretion in transposing the directive.
80


That said, where, in a situation in which action of the Member States is not entirely determined by EU law, a national provision or measure implements EU law for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (judgments of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 60, and of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 29).
82


In the present case, the objective of Directive 2001/29 is to harmonise only certain aspects of the law on copyright and related rights, of which a number of provisions also disclose the intention of the EU legislature to grant a degree of discretion to the Member States in the implementation of the directive (see, to that effect, judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 57).
85


It follows that Article 2(c) of Directive 2001/29 constitutes a measure of full harmonisation of the corresponding substantive law (see, by analogy, as regards the exclusive right of an EU trade mark proprietor, judgments of 20 November 2001, Zino Davidoff and Levi Strauss, C‑414/99 to C‑416/99, EU:C:2001:617, paragraph 39, and of 12 November 2002, Arsenal Football Club, C‑206/01, EU:C:2002:651, paragraph 43).