Flos SpA v Semeraro Casa e Famiglia SpA.
Date: 2011-01-27
42. In that regard, as the Court stated in paragraphs 18 to 20 of its judgment in Case C‑60/98 Butterfly Music  [1999] ECR I‑3939, it is clear from Article 10(2) of Directive 93/98 that application of the terms of protection laid down by the directive may have the effect, in the Member States which had a shorter term of protection under their legislation, of protecting afresh works or subject matter which had entered the public domain. The Court held that that consequence results from the express will of the European Union legislature and that such a solution was intended to achieve as rapidly as possible the objective – formulated, in particular, in recital 2 in the preamble to Directive 93/98 – of harmonising the national laws on the terms of protection of copyright and related rights and to avoid the situation where rights have expired in some Member States but are protected in others.
51. In that connection, it should be recalled that, in accordance with the principle that amending legislation applies, except where otherwise provided, to the future consequences of situations which arose under the law as it stood before amendment (see, in particular, Case 68/69 Brock [1970] ECR 171, paragraph 6; Case 270/84 Licata  v Economic and Social Committee [1986] ECR 2305, paragraph 31; and Butterfly Music , paragraph 24), acts performed before the date of entry into force of new legislation continue to be governed by the previous law. Thus, the revival of copyright protection has no effect on acts of exploitation definitively performed by a third party before the date on which such rights became applicable.
52. Conversely, by virtue of that principle, the fact that copyright protection applies with regard to the future consequences of situations which are not definitively settled means that it has an effect on a third party’s rights to continue the exploitation of subject-matter which is protected afresh by an intellectual property right (see, to that effect, Butterfly Music , paragraph 24).
53. It should also be recalled that it is settled case-law that the principle of the protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future consequences of situations which arose under the earlier rules (see, to that effect, Case 278/84 Germany v Commission [1987] ECR 1, paragraph 36; Case 203/86 Spain  v Council  [1988] ECR 4563, paragraph 19; Case C-221/88 Busseni [1990] ECR I-495, paragraph 35; and Butterfly Music , paragraph 25).
55. As regards, in the first place, the legislative measure providing for a transitional period in relation to a specific category of third parties with a view to protecting their legitimate interests, it follows from the principle that acquired rights must be respected and from the principle of the protection of legitimate expectations that Article 17 of Directive 98/71 does not preclude such a measure, provided that the measure does not have the effect of deferring for a substantial period the application of the new rules on copyright protection for designs so as to prevent them from applying on the date laid down by that directive (see, to that effect, Butterfly Music , paragraphs 23 and 28).