Spiegel Online GmbH v Volker Beck.
Date: 2019-07-29
19


In that regard, it should be stated that, by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order, rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law in the territory of that State (judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 59).
21


That said, where, in a situation in which action of the Member States is not entirely determined by EU law, a national provision or measure implements EU law for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (judgments of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 60, and of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 29).
23


In the present case, the objective of Directive 2001/29 is to harmonise only certain aspects of the law on copyright and related rights, of which a number of provisions also disclose the intention of the EU legislature to grant a degree of discretion to the Member States in the implementation of the directive (see, to that effect, judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 57).
25


In that regard, it is clear from the case-law of the Court that the scope of the Member States’ discretion in the transposition into national law of a particular exception or limitation referred to in Article 5(2) or (3) of Directive 2001/29 must be determined on a case-by-case basis, in particular, according to the wording of that provision (see, to that effect, judgments of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 36; of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 16; and of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraph 27; Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 116), the degree of the harmonisation of the exceptions and limitations intended by the EU legislature being based on their impact on the smooth functioning of the internal market, as stated in recital 31 of Directive 2001/29.
31


First, the Court has repeatedly held that the Member States’ discretion in the implementation of the abovementioned exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 must be exercised within the limits imposed by EU law, which means that the Member States are not in every case free to determine, in an un-harmonised manner, the parameters governing those exceptions or limitations (see, to that effect, judgments of 6 February 2003, SENA, C‑245/00, EU:C:2003:68, paragraph 34; of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 104; and of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 16; Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 122).
34


The Member States are also required, in that context, to comply with the general principles of EU law, which include the principle of proportionality, from which it follows that measures which the Member States may adopt must be appropriate for attaining their objective and must not go beyond what is necessary to achieve it (judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 105 and 106).
35


Second, the Court has reaffirmed that the discretion enjoyed by the Member States in implementing the exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 cannot be used so as to compromise the objectives of that directive that consist, as is clear from recitals 1 and 9 thereof, in establishing a high level of protection for authors and in ensuring the proper functioning of the internal market (see, to that effect, judgments of 1 December 2011, Painer, C‑145/10,EU:C:2011:798, paragraph 107, and of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 34; Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017, EU:C:2017:114, paragraph 124 and the case-law cited).
36


Nonetheless, it is also for the Member States, in effecting that implementation, to safeguard the effectiveness of the exceptions and limitations thereby established and to permit observance of their purpose (see, to that effect, judgments of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 163, and of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 23), in order to safeguard a fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter, as stated in recital 31 of that directive.
38


Lastly, fourth, as set out in paragraph 20 above, the principles enshrined in the Charter apply to the Member States when implementing EU law. It is therefore for the Member States, in transposing the exceptions and limitations referred to Article 5(2) and (3) of Directive 2001/29, to ensure that they rely on an interpretation of the directive which allows a fair balance to be struck between the various fundamental rights protected by the European Union legal order (judgments of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 46, and of 18 October 2018, Bastei Lübbe, C‑149/17, EU:C:2018:841, paragraph 45 and the case-law cited; see also, by analogy, judgment of 26 September 2013, IBV & Cie, C‑195/12, EU:C:2013:598, paragraphs 48 and 49 and the case-law cited).
41


First of all, it should be noted that it is clear both from the Explanatory Memorandum to Proposal COM(97) 628 final and from recital 32 of Directive 2001/29 that the list of exceptions and limitations contained in Article 5 of that directive is exhaustive, as the Court has also pointed out on several occasions (judgments of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraph 34, and of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 16).
42


As follows from recitals 3 and 31 of Directive 2001/29, the harmonisation effected by that directive aims to safeguard, in particular in the electronic environment, a fair balance between, on one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property rights guaranteed by Article 17(2) of the Charter and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter, in particular their freedom of expression and information guaranteed by Article 11 of the Charter, as well as of the public interest (see, to that effect, judgment of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 41).
43


The mechanisms allowing those different rights and interests to be balanced are contained in Directive 2001/29 itself, in that it provides inter alia, first, in Articles 2 to 4 thereof, rightholders with exclusive rights and, second, in Article 5 thereof, for exceptions and limitations to those rights which may, or even must, be transposed by the Member States, since those mechanisms must nevertheless find concrete expression in the national measures transposing that directive and in their application by national authorities (see, to that effect, judgment of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 66 and the case-law cited).
44


The Court has repeatedly held that the fundamental rights now enshrined in the Charter, the observance of which the Court ensures, draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories (see, to that effect, judgment of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 35 and the case-law cited).
45


As regards the exceptions and limitations provided for in Article 5(3)(c), second case, and (d) of Directive 2001/29 in respect of which the referring court has doubts, it is to be noted that they are specifically aimed at favouring the exercise of the right to freedom of expression by the users of protected subject matter and to freedom of the press, which is of particular importance when protected as a fundamental right, over the interest of the author in being able to prevent the use of his or her work, whilst ensuring that the author has the right, in principle, to have his or her name indicated (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 135).
47


In that context, to allow, notwithstanding the express intention of the EU legislature, set out in paragraph 41 above, each Member State to derogate from an author’s exclusive rights, referred to in Articles 2 to 4 of Directive 2001/29, beyond the exceptions and limitations exhaustively set out in Article 5 of that directive, would endanger the effectiveness of the harmonisation of copyright and related rights effected by that directive, as well as the objective of legal certainty pursued by it (judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 34 and 35). It is expressly clear from recital 31 of the directive that the differences that existed in the exceptions and limitations to certain restricted acts had direct negative effects on the functioning of the internal market of copyright and related rights, since the list of the exceptions and limitations set out in Article 5 of Directive 2001/29 is aimed at ensuring such proper functioning of the internal market.
48


In addition, as is clear from recital 32 of the directive, the Member States are required to apply those exceptions and limitations consistently. The requirement of consistency in the implementation of those exceptions and limitations could not be ensured if the Member States were free to provide for such exceptions and limitations beyond those expressly set out in Directive 2001/29 (see, to that effect, judgment of 12 November 2015, Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraphs 38 and 39), since the Court has moreover previously held that no provision of Directive 2001/29 envisages the possibility for the scope of such exceptions or limitations to be extended by the Member States (see, to that effect, judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 27).
52


Subsequently, when applying the measures transposing that directive, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with that directive but also make sure that they do not rely on an interpretation of it which would be in conflict with those fundamental rights or with the other general principles of EU law, as the Court has repeatedly held (see, to that effect, judgments of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 70; of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 46; and of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 34).
54


However, although Article 5 of Directive 2001/29 is expressly entitled ‘Exceptions and limitations’, it should be noted that those exceptions or limitations do themselves confer rights on the users of works or of other subject matter (see, to that effect, judgment of 11 September 2014, Eugen Ulmer, C‑117/13, EU:C:2014:2196, paragraph 43). In addition, that article is specifically intended, as has been stated in paragraph 36 above, to ensure a fair balance between, on the one hand, the rights and interests of rightholders, which must themselves be given a broad interpretation (see, to that effect, judgment of 16 November 2016, Soulier and Doke, C‑301/15, EU:C:2016:878, paragraphs 30 and 31 and the case-law cited) and, on the other, the rights and interests of users of works or other subject matter.
56


In that context, first, it should be added that the protection of intellectual property rights is indeed enshrined in Article 17(2) of the Charter. There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be protected as an absolute right (judgments of 24 November 2011, Scarlet Extended, C‑70/10, EU:C:2011:771, paragraph 43; of 16 February 2012, SABAM, C‑360/10, EU:C:2012:85, paragraph 41; and of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 61).
57


Second, it has been stated in paragraph 45 above that Article 5(3)(c) and (d) of Directive 2001/29 is aimed at favouring the exercise of the right to freedom of expression by the users of protected subject matter and to freedom of the press, enshrined in Article 11 of the Charter. In that regard, it should be noted that, in so far as the Charter contains rights which correspond to those guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), Article 52(3) of the Charter seeks to ensure the necessary consistency between the rights contained in it and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union (see, by analogy, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 47, and of 26 September 2018, Staatssecretaris van Veiligheid en justitie (Suspensory effect of the appeal), C‑180/17, EU:C:2018:775, paragraph 31 and the case-law cited). Article 11 of the Charter contains rights which correspond to those guaranteed by Article 10(1) of the ECHR (see, to that effect, judgment of 14 February 2019, Buivids, C‑345/17, EU:C:2019:122, paragraph 65 and the case-law cited).
62


As is clear from settled case-law, the need to ensure a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which, as is the case of Article 5(3) of Directive 2001/29, 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 (judgment of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 32 and the case-law cited).
65


Since Directive 2001/29 gives no definition of those words, they must be interpreted in accordance with their usual meaning in everyday language, while also taking into account the legislative context in which they occur and the purposes of the rules of which they are part (see, to that effect, judgment of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 19 and the case-law cited).
72


Third, as regards safeguarding the effectiveness of the exception or limitation provided for in Article 5(3)(c), second case, of Directive 2001/29, it should be noted that its purpose is to contribute to the exercise of the freedom of information and the freedom of the media, enshrined in Article 11 of the Charter, since the Court has already indicated that the purpose of the press, in a democratic society governed by the rule of law, justifies it in informing the public, without restrictions other than those that are strictly necessary (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 113).
78


As regards the usual meaning of the word ‘quotation’ in everyday language, it should be noted that the essential characteristics of a quotation are the use, by a user other than the copyright holder, of a work or, more generally, of an extract from a work for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user. In that regard, the Court has previously held that the issue of whether the quotation is made as part of a work protected by copyright or, on the other hand, as part of subject matter not protected by copyright, is irrelevant (judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 136).
81


Such a possibility is consistent with the legislative context of which that provision forms a part, since Directive 2001/29 concerns the legal protection of copyright in the framework of the internal market with particular emphasis on the information society, as set out in Article 1(1) thereof. As the Court has stated on several occasions, hyperlinks contribute to the sound operation of the internet, which is of particular importance to freedom of expression and of information, enshrined in Article 11 of the Charter, as well as to the exchange of opinions and information in that network characterised by the availability of incalculable amounts of information (judgments of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 45, and of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 40).
82


Furthermore, such an interpretation is not undermined by the objective to which the exception for quotations provided for in Article 5(3)(d) of Directive 2001/29 aspires, which, as the Court has previously held, is intended to strike a fair balance between the right to freedom of expression of users of a work or other subject matter and the reproduction right conferred on authors and to preclude the exclusive right of reproduction conferred on authors from preventing the publication, by means of quotation accompanied by comments or criticism, of extracts from a work that is already available to the public (judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 120 and 134).
87


In that regard, the Court has previously held that the expression ‘mise à la disposition du public d’une œuvre’ (making a work available to the public) in the French language version must be understood, within the meaning of Article 5(3)(d) of Directive 2001/29, as meaning the act of making a work available to the public, that interpretation being supported both by the expressions ‘made available to the public’ and ‘der Öffentlichkeit zugänglich gemacht’, which are used indiscriminately in the English and German language versions of that article (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 128).
88


As to whether a work has already been ‘lawfully’ made available to the public, the Court has pointed out that the only quotations permissible, provided that the other conditions provided for in Article 5(3)(d) of Directive 2001/29 are satisfied, are quotations from a work which has already been lawfully made available to the public (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 127).
91


It must be borne in mind, in that regard, that it is for the national court to decide whether a work has been lawfully made available to the public, in the light of the particular case before it and by taking into account all the circumstances of the case (see, to that effect, judgment of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 28).