Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA) and Others v Administración del Estado and Asociación Multisectorial de Empresas de la Electrónica, las Tecnologías de la Información y la Comunicación, de las Telecomunicaciones y de los contenidos Digitales (AMETIC).
Date: 2016-06-09
19


As is apparent from recitals 35 and 38 of Directive 2001/29, that provision reflects the EU legislature’s intention to establish a specific compensation scheme which is triggered by the existence of harm caused to rightholders, which gives rise, in principle, to the obligation to ‘compensate’ them (see, to that effect, judgment of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 41).
20


It follows that, when the Member States decide to implement the private copying exception provided for under that provision in their national law, they are required, in particular, to provide for the payment of fair compensation to rightholders (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 30, and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 19).
21


Furthermore, the Court has already held that, if Article 5(2)(b) of Directive 2001/29 is not to be devoid of all practical effect, that provision must be regarded as imposing an obligation to achieve a certain result upon the Member States which have implemented the private copying exception, in the sense that they must guarantee, within the framework of their competences, the actual recovery of the fair compensation intended to compensate the rightholders (see, to that effect, judgments of 16 June 2011 in Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 34, and 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 57).
22


Nonetheless, in so far as that provision is merely optional and does not provide any further details concerning the various parameters of the fair compensation scheme that it requires to be established, the Member States must be considered to enjoy broad discretion in regard to the parameters of their national law (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 37; 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 20; and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 20).
23


In particular, it falls to the Member States to determine the persons who have to pay that fair compensation, and to determine the form, detailed arrangements and level thereof, in compliance with Directive 2001/29 and, more generally, with EU law (see, to that effect, judgments of 16 June 2011 in Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 23; 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 21; and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 20).
26


In the second place, it is clear from recitals 35 and 38 of Directive 2001/29 that the fair compensation provided for in Article 5(2)(b) of that directive is intended to adequately compensate rightholders for the non-authorised use of their protected works or subject matter. In order to determine the level of that compensation, account must be taken, as a useful criterion, of the harm suffered by the rightholder concerned as a result of the act of reproduction at issue (see, to that effect, judgment of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 39).
27


It follows that it is for the persons who reproduce the protected works or subject matter without the prior authorisation of the rightholder concerned, and who therefore cause harm to them, to make good that harm by financing the fair compensation provided for that purpose (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 45, and 12 November 2015 in Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraph 69).
28


In that regard, the Court has made clear that it is not at all necessary for such persons to have actually made private copies. Indeed, where the appliances or reproduction media are made available to them, that availability is sufficient to justify their contribution to the financing of the fair compensation provided to rightholders (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraphs 54 to 56, and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraphs 24, 25 and 64).
29


It follows from the clear terms of Article 5(2)(b) of Directive 2001/29 that the private copying exception is intended exclusively for natural persons making, or having the capacity to make, reproductions of protected works or subject matter for private use and for purposes neither directly nor indirectly commercial (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraphs 43 to 45 and 54 to 56, and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraphs 22 to 25 and 64).
31


In that regard the Court has already ruled that it is inconsistent with Article 5(2) of Directive 2001/29 to apply a private copying levy, in particular with regard to digital reproduction equipment, devices and media which are acquired by persons other than natural persons for purposes clearly unrelated to such private copying (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 53, and 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 28).
33


The Court has thus accepted that, given the practical difficulties which might arise when implementing such financing, Member States were free to finance that fair compensation by means of a levy imposed, prior to the making of private copies, on persons who have reproduction equipment, devices and media and make them available to natural persons (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 46; 16 June 2011 in Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 27; 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 46).
34


Nothing prevents persons from passing on the private copying levy by including it in the price charged for making the reproduction equipment, devices and media available or in the price for the copying service supplied. Thus, the burden of the levy will ultimately be borne by the private user who pays that price. In those circumstances, the private user for whom the reproduction equipment, devices or media are made available or who benefits from a copying service must be regarded as being, in reality, the ‘person indirectly liable to pay’ fair compensation, that is to say the person actually liable for payment (see, to that effect, judgment of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 48).
35


Financing such as that referred to in paragraph 33 above must therefore be regarded as consistent with the fair balance that is to be struck, in accordance with recital 31 of Directive 2001/29, between the interests of rightholders and the interests of users (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 49; 16 June 2011 in Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraphs 28 and 29; and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 53).
38


It should be borne in mind that the concept of fair compensation is not defined by reference to national law, and it must thus be regarded as an autonomous concept of EU law and interpreted uniformly throughout the territory of the European Union (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraphs 31 to 33 and 37, and 12 November 2015 in Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraph 35).
40


Moreover, there is nothing in the file submitted to the Court to suggest that there is, in the present case, a particular measure allowing legal persons, which do not in any event fall within Article 5(2)(b) of Directive 2001/29, to request to be exempted from contributing to the financing of that compensation or, at least, to seek reimbursement (see, in that regard, judgments of 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraphs 25 to 31 and 37, and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 45) under the detailed rules that it is solely for the Member States to establish.