Art & Allposters International BV v Stichting Pictoright.
Date: 2015-01-22
22. The jurisdiction of the Court, in the procedure laid down in Article 267 TFEU, is confined to considering provisions of EU law only and it has no jurisdiction to rule on the compatibility of national law, including the case-law of the Member States, with EU law (see, to that effect, Triveneta Zuccheri and Others  v Commission , C‑347/87, EU:C:1990:129, paragraph 16, and Schwarz , C‑321/07, EU:C:2009:104, paragraph 48).
30. Moreover, according to the case-law of the Court, Article 4(2) does not leave it open to the Member States to provide for an exhaustion rule other than that set out in that provision, to the extent that, as follows from recital 31 of Directive 2001/29, differences in the national laws governing exhaustion of the right of distribution are likely to affect directly the smooth functioning of the internal market (see, to that effect, judgment in Laserdisken , C‑479/04, EU:C:2006:549, paragraphs 24 and 56).
31. Taking the wording of that article as a basis, the Court found that for the distribution right to be exhausted, two conditions must be fulfilled: first, the original of a work or copies thereof must have been placed on the market by the rightholder or with his consent and, second, they must have been placed on the market in the European Union (see judgment in Laserdisken , EU:C:2006:549, paragraph 21).
36. Similarly, according to settled case-law of the Court, literary and artistic works may be the subject of commercial exploitation, whether by way of public performance or of the reproduction and marketing of the recordings made of them (judgment in FDV , C‑61/97, EU:C:1998:422, paragraph 14 and the case-law cited).
37. It follows from the foregoing considerations that the EU legislature, by using the terms ‘tangible article’ and ‘that object’, wished to give authors control over the initial marketing in the European Union of each tangible object incorporating their intellectual creation.
38. That finding, as the European Commission correctly states, is supported by international law, and in particular by the WIPO Copyright Treaty, in the light of which Directive 2001/29 must be interpreted as far as possible (see, to that effect, judgments in Laserdisken , EU:C:2006:549, paragraphs 39 and 40; Peek & Cloppenburg , C‑456/06, EU:C:2008:232, paragraphs 30 and 31; Football Association Premier League and Others , C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 189; and Donner , C‑5/11, EU:C:2012:370, paragraph 23).
47. That interpretation is supported by the principal objective of Directive 2001/29 which, according to recitals 9 and 10 of that directive, is to establish a high level of protection of, inter alia, authors, allowing them to obtain an appropriate reward for the use of their works (see judgments in SGAE , C‑306/05, EU:C:2006:764, paragraph 36; Peek & Cloppenburg , EU:C:2008:232, paragraph 37; and Football Association Premier League and Others , EU:C:2011:631, paragraph 186).
48. However, it follows from the arguments advanced before the Court by the parties in the main proceedings that the copyright holders did not consent to the distribution of the canvas transfers, at least not expressly. Accordingly, applying the rule of exhaustion of the distribution right would deprive those rightholders of the possibility of prohibiting those objects from being distributed or, in the event of distribution, of requiring appropriate reward for the commercial exploitation of their works. In that regard, the Court has already held that, in order to be appropriate, such remuneration must be reasonable in relation to the economic value of the exploitation of the protected work (see, by analogy, judgment in Football Association Premier League and Others , EU:C:2011:631, paragraphs 107 to 109). As regards canvas transfers, the parties in the main proceedings acknowledge that their economic value significantly exceeds that of posters.