Bonnier Audio AB and Others v Perfect Communication Sweden AB.
Date: 2012-04-19
47. None the less, in order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may also deem it necessary to consider provisions of European Union law to which the national court has not referred in its question (see, inter alia, Case C‑107/98 Teckal  [1999] ECR I‑8121, paragraph 39, and Case C‑2/07 Abraham and Others  [2008] ECR I‑1197, paragraph 24).
49. The reference made by the national court, in its first question, to compliance with the requirement for clear evidence of an infringement of a copyright and to the proportionate nature of the injunction which would be issued under the transposing law at issue in the main proceedings and, as follows from paragraph 34 of the present judgment, to the judgment in Promusicae , suggests that the national court is also doubtful as to whether the provisions in question of that transposing law are likely to ensure a fair balance between the various applicable fundamental rights, as required by that judgment, which interpreted and applied various provisions of Directives 2002/58 and 2004/48.
52. It must be held that the communication sought by the applicants in the main proceedings constitutes the processing of personal data within the meaning of the first paragraph of Article 2 of Directive 2002/58, read in conjunction with Article 2(b) of Directive 95/46. That communication therefore falls within the scope of Directive 2002/58 (see, to that effect, Promusicae , paragraph 45).
54. In that regard, it must be stated at the outset that an application for communication of personal data in order to ensure effective protection of copyright falls, by its very object, within the scope of Directive 2004/48 (see, to that effect, Promusicae , paragraph 58).
55. The Court has already held that Article 8(3) of Directive 2004/48, read in conjunction with Article 15(1) of Directive 2002/58, does not preclude Member States from imposing an obligation to disclose to private persons personal data in order to enable them to bring civil proceedings for copyright infringements, but nor does it require those Member States to lay down such an obligation (see Promusicae , paragraphs 54 and 55, and order in LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten , paragraph 29).
56. However, the Court pointed out that, when transposing, inter alia, Directives 2002/58 and 2004/48 into national law, it is for the Member States to ensure that they rely on an interpretation of those directives which allows a fair balance to be struck between the various fundamental rights protected by the European Union legal order. Furthermore, when implementing the measures transposing those directives, the authorities and courts of Member States must not only interpret their national law in a manner consistent with them, but must also make sure that they do not rely on an interpretation of them which would conflict with those fundamental rights or with the other general principles of European Union law, such as the principle of proportionality (see, to that effect, Promusicae , paragraph 68, and order in LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten , paragraph 28).