Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH v Amazon EU Sàrl and Others.
Date: 2016-04-21
17


As a preliminary point it must be recalled that, according to settled case-law, where Member States decide to introduce the exception, provided for in Article 5(2)(b) of Directive 2001/29, to the right of reproduction for copying for private use (‘the private copying exception’) into their national law, they are required, in particular, to provide, pursuant to that provision, for the payment of fair compensation to holders of the exclusive right of reproduction (see judgment of 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 19 and the case-law cited).
18


Since the provisions of that directive do not provide any further details concerning the various elements of the fair compensation system, the Member States enjoy broad discretion in that regard. It is for the Member States to determine, inter alia, who must pay that compensation and to establish the form, detailed arrangements for collection and the level of compensation (see judgment of 5 March in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 20 and the case-law cited).
19


The system on which fair compensation is based and the notion and level of that compensation are linked to the harm resulting for the author from the reproduction for private use of his protected work, without his authorisation. From that perspective, fair compensation must be regarded as recompense to rightholders for the harm suffered by them (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 40; 16 June 2011 in Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 24; 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 47; 10 April 2014 in ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 50; and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 21).
20


The Court also held that Article 5(2)(b) of Directive 2001/29 imposes on a Member State which has introduced the private copying exception into its national law an obligation to achieve a certain result, in the sense that that State must ensure, in accordance with its territorial competence, the effective recovery of the fair compensation for the harm suffered by the holders of the exclusive right of reproduction on the territory of that State (see, to that effect, judgments of 16 June 2011 in Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraphs 34 to 36, 39 and 41, and 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraphs 32 and 57 to 59).
21


Although the Court has interpreted that provision as meaning that, in principle, it is for the person who has caused the harm to the holder of the exclusive right of reproduction, that is the person who, for his private use, reproduces a protected work without seeking prior authorisation from that rightholder, to make good the harm related to that copying by financing the compensation which will be paid to that rightholder (see judgments of 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 23, and 10 April 2014 in ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 51), it has however accepted that, given the practical difficulties in identifying private users and obliging them to compensate the holders of the exclusive right of reproduction for the harm caused to them, it is open to the Member States to establish a ‘private copying levy’ for the purposes of financing fair compensation, chargeable not to the private persons concerned but to those who have the digital reproduction equipment, devices and media and who, on that basis, in law or in fact, make that equipment available to private users or who provide copying services for them. Under such a system, it is the persons having that equipment who must discharge the private copying levy (see, in particular, judgments of 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 24, and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 23).
22


In that connection, the Court has explained that, since that system enables the persons responsible for payment to pass on the amount of the private copying levy in the price charged for making the reproduction equipment, devices and media available, or in the price for the copying service supplied, the burden of the levy will ultimately be borne by the private user who pays that price, in a way consistent with the ‘fair balance’ between the interests of the holders of the exclusive right of reproduction and those of the users of the protected subject matter (see judgments of 16 June 2011 in Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 28, and 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 25).
24


Under the system established by Paragraph 42b of the UrhG for the financing of fair compensation referred to in Article 5(2)(b) of Directive 2001/29, the private copying levy is payable by those who make available, for commercial purposes and for consideration, recording media suitable for reproduction (see judgment of 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 26).
25


In principle, such a system, as already stated in paragraph 22 of the present judgment, enables the persons responsible for payment to pass on the amount of that levy in the sale price of those media, so that the burden of the levy is ultimately borne, in accordance with the requirement of a ‘fair balance’, by the private user who pays that price, if such a user is the final recipient (see judgment of 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 27).
27


As regards the jurisdiction of the Austrian courts to entertain Austro-Mechana’s claim for payment of the remuneration provided for under Paragraph 42b of the UrhG, it must be recalled that it is only by way of derogation from that fundamental principle laid down in Article 2(1) of Regulation No 44/2001, attributing jurisdiction to the courts of the defendant’s domicile, that Section 2 of Chapter II thereof makes provision for certain special jurisdictional rules, such as that laid down in Article 5(3) of that regulation (see judgments of 16 May 2013 in Melzer, C‑228/11, EU:C:2013:305, paragraph 23; 3 October 2013 in Pinckney, C‑170/12, EU:C:2013:635, paragraph 24; 5 June 2014 in Coty Germany, C‑360/12, EU:C:2014:1318, paragraph 44; and 22 January 2015 in Hejduk, C‑441/13, EU:C:2015:28, paragraph 17).
29


The rule of special jurisdiction laid down by that provision must be interpreted independently and strictly (see judgments of 28 January 2015 in Kolassa, C‑375/13, EU:C:2015:37, paragraph 43, and 21 May 2015 in CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 37).
30


In that connection, it must be recalled that, according to settled case-law, the rule of jurisdiction laid down in Article 5(3) of Regulation No 44/2001 is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (see judgments of 16 May 2013 in Melzer, C‑228/11, EU:C:2013:305, paragraph 26; 3 October 2013 in Pinckney, C‑170/12, EU:C:2013:635, paragraph 27; 5 June 2014 in Coty Germany, C‑360/12, EU:C:2014:1318, paragraph 47; 22 January 2015 in Hejduk, C‑441/13, EU:C:2015:28, paragraph 19; and 28 January 2015 in Kolassa, C‑375/13, EU:C:2015:37, paragraph 46).
31


In matters relating to tort, delict and quasi-delict, the courts for the place where the harmful event occurred are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence (see judgments of 25 October 2012 in Folien Fischer and Fofitec, C‑133/11, EU:C:2012:664, paragraph 38; 16 May 2013 in Melzer, C‑228/11, EU:C:2013:305, paragraph 27; 18 July 2013 in ÖFAB, C‑147/12, EU:C:2013:490, paragraph 50; and 21 May 2015 in CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 40).
32


According to settled case-law, the concept of ‘matters relating to tort, delict or quasi-delict’ covers all actions which seek to establish the liability of a defendant and do not concern ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Regulation No 44/2001 (see judgments of 27 September 1988 in Kalfelis, 189/87, EU:C:1988:459, paragraphs 17 and 18; 13 March 2014 in Brogsitter, C‑548/12, EU:C:2014:148, paragraph 20; and 28 January 2015 in Kolassa, C‑375/13, EU:C:2015:37, paragraph 44).
34


In that connection, the Court has held that the conclusion of a contract is not a condition for the application of Article 5(1) of Regulation No 44/2001 (see judgment in of 28 January 2015 in Kolassa, C‑375/13, EU:C:2015:37, paragraph 38).
35


Although Article 5(1)(a) of Regulation No 44/2001 does not require the conclusion of a contract, it is nevertheless essential, for that provision to apply, to identify an obligation, since the jurisdiction of the national court under that provision is determined by the place of performance of the obligation in question. Thus, the concept of ‘matters relating to contract’ within the meaning of that provision is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another (see judgment of 14 March 2013 in Česká spořitelna, C‑419/11, EU:C:2013:165, paragraph 46).
36


Consequently, the application of the rule of special jurisdiction providing for matters relating to a contract in Article 5(1)(a) of Regulation No 44/2001 presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based (see judgments of 14 March 2013 in Česká spořitelna, C‑419/11, EU:C:2013:165, paragraph 47, and 28 January 2015 in Kolassa, C‑375/13, EU:C:2015:37, paragraph 39).
41


Liability in tort, delict or quasi-delict can only arise provided that a causal connection can be established between the damage and the event in which that damage originates (see judgments of 30 November 1976 in Bier, 21/76, EU:C:1976:166, paragraph 16, and 5 February 2004 in DFDS Torline, C‑18/02, EU:C:2004:74, paragraph 32).