Peek & Cloppenburg KG v Cassina SpA.
Date: 2008-04-17
24. In this connection, it must be pointed out that neither the Statute of the Court of Justice nor its Rules of Procedure make provision for the parties to submit observations in response to the Advocate General’s Opinion (see, inter alia, Case C‑259/04 Emanuel  [2006] ECR I-3089, paragraph 15).
25. Admittedly, the Court may, of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, inter alia, Case C‑209/01 Schilling and Fleck-Schilling [2003] ECR I-13389, paragraph 19, and Case C-30/02 Recheio – Cash & Carry [2004] ECR I-6051, paragraph 12).
29. Neither Article 4(1) of Directive 2001/29 nor any other provision of that directive gives a sufficient explanation of the concept of distribution to the public of a work protected by copyright. That concept is, on the other hand, defined more clearly by the CT and the PPT.
30. In this connection, it is settled case-law that Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community (see, inter alia, Case C‑341/95 Bettati  [1998] ECR I‑4355, paragraph 20, and Case C-306/05 SGAE  [2006] ECR I-11519, paragraph 35).
31. It is common ground that, as recital 15 in the preamble to Directive 2001/29 makes clear, that directive is intended to implement at Community level the Community’s obligations under the CT and the PPT. In those circumstances, the concept of distribution in Article 4(1) of that directive must be interpreted, as far as is possible, in the light of the definitions given in those Treaties.
32. Article 6(1) of the CT defines the concept of the right of distribution enjoyed by the authors of literary and artistic works as the exclusive right of authorising the making available to the public of the original and copies of their works through sale or ‘other transfer of ownership’. Moreover, Articles 8 and 12 of the PPT contain the same definitions of the right of distribution enjoyed by performers and producers of phonograms. Thus, the relevant international Treaties link the concept of distribution exclusively to that of transfer of ownership.
33. Since Article 4(1) of Directive 2001/29 provides, in such a context, for ‘distribution by sale or otherwise’, that concept should be interpreted in accordance with those Treaties as a form of distribution which entails a transfer of ownership.
37. Contrary to what Cassina asserts, those findings are not affected by recitals 9 to 11 in the preamble to Directive 2001/29, which state that harmonisation of copyright must take as a basis a high level of protection, that authors have to receive an appropriate reward for the use of their work and that the system for the protection of copyright must be rigorous and effective.