Laserdisken ApS v Kulturministeriet.
Date: 2006-09-12
21. It follows that for the right in question 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 Community.
24. It follows from the clear wording of Article 4(2) of Directive 2001/29, in conjunction with the twenty-eighth recital in the preamble to that directive, that that provision does not leave it open to the Member States to provide for a rule of exhaustion other than the Community-wide exhaustion rule.
26. This, moreover, is the only interpretation which is fully consistent with the purpose of Directive 2001/29 which, according to the first recital in the preamble thereto, is to ensure the functioning of the internal market. A situation in which some Member States will be able to provide for international exhaustion of distribution rights whilst others will provide only for Community-wide exhaustion of those rights will inevitably give rise to barriers to the free movement of goods and the freedom to provide services.
30. According to settled case-law, in the context of the organisation of the powers of the Community the choice of the legal basis for a measure must rest on objective factors which are amenable to judicial review. Those factors include in particular the aim and content of the measure (Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others  [2005] ECR I-10423, paragraph 54 and case-law cited).
31. The Court notes that Articles 47(2) EC, 55 EC and 95 EC, on the basis of which Directive 2001/29 was adopted, allow for the taking of measures necessary for the smooth functioning of the internal market as regards freedom of establishment and the freedom to provide services through harmonisation of national laws pertaining to the content and exercise of copyright and related rights.
39. Moreover, the fifteenth recital in the preamble to Directive 2001/29 states that the Directive implements the international obligations resulting from the adoption, in Geneva on 20 December 1996, under the auspices of the World Intellectual Property Organisation (‘WIPO’), of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, which treaties were approved on behalf of the Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6).
40. Regarding the right of distribution, neither Article 6(2) of the WIPO Copyright Treaty nor Articles 8(2) and 12(2) of the WIPO Performances and Phonograms Treaty impose an obligation on the Community, as a contracting party, to provide for a specific rule concerning the exhaustion of that right.
53. According to settled case-law, the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco  [2002] ECR I-11453, paragraph 122).
56. It should be borne in mind that differences in the national laws governing exhaustion of the right of distribution are likely to affect directly the smooth functioning of the internal market. Accordingly, the objective of harmonisation in this area is to remove impediments to free movement.
61. As a preliminary point, it should be recalled that, according to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures, and that, for that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (Case C‑112/00 Schmidberger  [2003] ECR I-5659, paragraph 71 and case-law cited).
62. Freedom of expression, enshrined in Article 10 of the ECHR, is a fundamental right the observance of which is ensured by the Community courts (Case C‑260/89 ERT  [1991] ECR I-2925, paragraph 44). The same is true of the right to property, which is guaranteed by Article 1 of the Additional Protocol to the ECHR (see, to that effect, Case C‑347/03 Regione autonoma Friuli-Venezia Giulia and ERSA  [2005] ECR I‑3785, paragraph 119, and Joined Cases C‑154/04 and C‑155/04 Alliance for Natural Health and Others  [2005] ECR I‑6451, paragraph 126).
64. Secondly, regarding the freedom to receive information, even if the exhaustion rule laid down in Article 4(2) of Directive 2001/29 may be capable of restricting that freedom, it nevertheless follows from Article 10(2) of the ECHR that the freedoms guaranteed by Article 10(1) may be subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under that provision and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect, Case C‑71/02 Karner  [2004] ECR I‑3025, paragraph 50).
65. In the present case, the alleged restriction on the freedom to receive information is justified in the light of the need to protect intellectual property rights, including copyright, which form part of the right to property.
68. It is settled case-law that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified ( ABNA and Others , paragraph 63 and case-law cited).