DR and TV2 Danmark A/S v NCB – Nordisk Copyright Bureau.
Date: 2012-04-26
21. In that regard, it must be borne in mind that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 267 TFEU, it is solely for the national court before which the 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 in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑11987, paragraph 16 and the case‑law cited).
22. Where questions submitted by national courts concern the interpretation of a provision of European Union law, the Court is bound, in principle, to give a ruling unless it is obvious that the request for a preliminary ruling is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of European Union law requested bears no relation to the actual facts of the main action or its purpose, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Confederación Española de Empresarios de Estaciones de Servicio , paragraph 17 and case‑law cited).
29. With regard to the Berne Convention, the European Union, although not a party to it, is nevertheless obliged, under Article 1(4) of the WIPO Copyright Treaty, to which it is a party, which forms part of its legal order and which Directive 2001/29 is intended to implement, to comply with Articles 1 to 21 of the Berne Convention (see, to that effect, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others  [2011] ECR I‑9083, paragraph 189 and the case‑law cited). Consequently, the European Union is obliged to comply with, inter alia, Article 11 bis  of the Berne Convention (see, by analogy, judgment of 9 February 2012 in Case C‑277/10 Luksan , paragraph 59).
31. That being so, by adopting Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, the European Union legislature is deemed to have exercised the competence previously devolved on the Member States in the field of intellectual property. Within the scope of that directive, the European Union must be regarded as having taken the place of the Member States, which are no longer competent to implement the relevant stipulations of the Berne Convention (see, to that effect, Luksan , paragraph 64).
33. Secondly, it must be borne in mind that, according to settled case‑law, the need for a uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union (see, inter alia, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑287/98 Linster  [2000] ECR I‑6917, paragraph 43; Case C‑5/08 Infopaq International  [2009] ECR I‑6569, paragraph 27; and Case C‑34/10 Brüstle  [2011] ECR I‑9821, paragraph 25).
34. The wording of Directive 2001/29 does not make any reference to national laws as regards the meaning of the expression ‘by means of its own facilities’ in Article 5(2)(d) of that directive. It follows that that expression must be regarded, for the purposes of applying that directive, as covering an autonomous concept of European Union law, which must be interpreted in a uniform manner throughout the territory of the European Union.
35. This conclusion is supported by the subject-matter and purpose of Directive 2001/29. The objective of Directive 2001/29, which is based, in particular, on Article 95 EC and is intended to harmonise certain aspects of the law on copyright and related rights in the information society and to ensure that competition in the internal market is not distorted as a result of differences in the legislation of Member States (Case C‑479/04 Laserdisken  [2006] ECR I‑8089, paragraphs 26 and 31 to 34), requires the elaboration of autonomous concepts of European Union law. The European Union legislature’s aim of achieving a uniform interpretation of the concepts contained in Directive 2001/29 is apparent in particular from recital 32 in the preamble thereto, which calls on the Member States to arrive at a coherent application of the exceptions to and limitations on reproduction rights, with a view to ensuring a functioning internal market.
36. Consequently, although it is open to the Member States, as has been pointed out in paragraph 32 of this judgment, to introduce an exception in respect of ephemeral recordings into their domestic law, an interpretation according to which Member States which, exercising that option afforded to them by European Union law, have introduced an exception of that kind, are free to determine, in an un‑harmonised manner, the limits thereof, inter alia as regards the facilities used to make those ephemeral recordings, would be contrary to the objective of that directive as set out in the preceding paragraph, inasmuch as the limits of that exception could vary from one Member State to another and would therefore give rise to potential inconsistencies (see, by analogy, concerning the concept of ‘fair compensation’ referred to in Article 5(2)(b) of Directive 2001/29, Case C‑467/08 Padawan  [2010] ECR I‑10055, paragraphs 34 to 36).
44. According to settled case‑law, the wording used in one language version of a provision of European Union law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of European Union law (see Case C‑149/97 Institute of the Motor Industry  [1998] ECR I‑7053, paragraph 16, and Case C‑187/07 Endendijk [2008] ECR I‑2115, paragraph 23).
45. In those circumstances, where there is divergence between two language versions of a European Union legal text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see, to that effect, Case 30/77 Bouchereau  [1977] ECR 1999, paragraph 14; Case C‑482/98 Italy  v Commission  [2000] ECR I‑10861, paragraph 49; and Case C‑1/02 Borgmann  [2004] ECR I‑3219, paragraph 25).