1. By application lodged at the Court Registry on 25 February 2002, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (OJ 1998 L 320, p. 54; " the Directive" ), or, at the very least, by failing to notify it of the adoption of those measures, the Kingdom of Spain has failed to fulfil its obligations under that Directive. Relevant provisions Community legislation
2. According to Article 1, the objective of the Directive is " to approximate provisions in the Member States concerning measures against illicit devices which give unauthorised access to protected services."
3. Article 2(a) of the Directive states that a " protected service" is " any of the following services, where provided against remuneration and on the basis of conditional access: ─ television broadcasting, as defined in Article 1(a) of Directive 89/552/EEC, ─ radio broadcasting, meaning any transmission by wire or over the air, including by satellite, of radio programmes intended for reception by the public, ─ information society services within the meaning of Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services ... or the provision of conditional access to the above services considered as a service in its own right " .
4. Article 4 of the Directive provides: " Member States shall prohibit on their territory all of the following activities: (a) the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices; (b) the installation, maintenance or replacement for commercial purposes of an illicit device; (c) the use of commercial communications to promote illicit devices. "
5. To ensure that these prohibitions are complied with, Article 5(1) of the Directive provides that Member States are to adopt sanctions which are " effective, dissuasive and proportionate to the potential impact of the infringing activity."
6. Article 5(2) of the Directive states: " Member States shall take the necessary measures to ensure that providers of protected services whose interests are affected by an infringing activity as specified in Article 4, carried out on their territory, have access to appropriate remedies, including bringing an action for damages and obtaining an injunction or other preventive measure, and where appropriate, applying for disposal outside commercial channels of illicit devices."
7. Under Article 6 of the Directive: " 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 28 May 2000. They shall notify them to the Commission forthwith. When Member States adopt such measures, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The methods of making such reference shall be laid down by Member States. 2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field coordinated by this Directive. " National legislation
8. Article 270 of the Spanish criminal code ( " the Criminal Code" ) reads as follows: " Anyone who, for profit and to the detriment of a third party, reproduces, plagiarises, distributes or publicly broadcasts, in whole or in part, a literary, artistic or scientific work, or an artistic reworking, rendition or performance of such a work, regardless of the medium or the means by which it is broadcast, without the authorisation of the holders of the relevant intellectual property rights or their assignees, shall be sentenced to between six months and two years ' imprisonment or to a fine for a period of between six and twenty-four months. ... The manufacture, placing on the market and possession of any device specifically intended to facilitate the unauthorised removal or disabling of any technical device to protect computer software shall be punishable with the same penalty. "
9. Article 248(2) of the Criminal Code provides: " Anyone who, for profit and using a computer or similar device, undertakes the transfer of any financial asset, without authorisation and to the detriment of a third party, shall likewise be guilty of fraud."
10. Article 255 of the Criminal Code states: " Anyone who commits fraud in an amount exceeding ESP fifty thousand by using electricity, gas, water, telecommunications or any other item, energy source or fluid belonging to another through any of the following methods: 1. Using mechanisms installed to carry out the fraud; 2. Maliciously altering readings or meters; 3. Using any other illegal means; shall be sentenced to a fine for a period of between three and twelve months. " Pre-litigation procedure
11. Since the Commission was not notified of any implementing measures adopted before the expiry of the period prescribed for that purpose, on 8 August 2000 it sent a formal notice to the Kingdom of Spain. In their reply of 7 November 2000 the Spanish authorities stated that the Directive would be implemented by means of an amendment to the Criminal Code and that the work on implementation had been delayed due to the elections of March 2000 and the resulting ministerial restructuring.
12. By letter of 26 July 2001, the Commission delivered a reasoned opinion to the Kingdom of Spain which concluded that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive or, at the very least, by failing to notify it of the adoption of those measures, the Kingdom of Spain had failed to fulfil its obligations under Article 6 of that Directive. The reasoned opinion called on that Member State to take the measures necessary to comply with it within two months of its notification.
13. In their reply of 1 October 2001 to that reasoned opinion, the Spanish authorities transmitted to the Commission a copy of the draft bill for the basic law reforming the Criminal Code, which was intended, inter alia, to implement the Directive. Thereafter the Commission received no further communication from the Spanish Government concerning the progress of the legislative work.
14. Taking the view that the Kingdom of Spain had not brought the infringement to an end, the Commission decided to bring the present action. Substance
15. The Commission alleges that the Kingdom of Spain has not fulfilled its obligations under the Directive, since the measures necessary to implement it have not been adopted in the period prescribed for that purpose, or, at the very least, the Commission has not been notified of the adoption of those measures.
16. The Spanish Government claims, first, that the draft bill for the basic law reforming the Criminal Code, reproducing almost word for word the definitions of the activities set out in the Directive, was drawn up and reviewed by the competent authorities and, secondly, that the Spanish legislation in force already provides for sanctions affording protection like that required under the Directive.
17. The Spanish Government believes in that regard that Articles 248(2), 255 and 270 of the Criminal Code do transpose the Directive, in particular in relation to the prohibition of the infringements in Article 4 of the Directive. In the alternative, Articles 28 and 29 of the Criminal Code apply generally to persons who disclose to the public where they can access the programme and the means necessary to decode the signal fraudulently. That government also maintains that Article 127 of the Criminal Code provides, additionally, for the confiscation of the means through which the infringement was carried out. Likewise, Articles 721 to 747 of the Code of Civil Procedure prescribe the adoption of preventive measures and Article 334 et seq. of the Code of Criminal Procedure authorise the seizure and retention of instruments and objects associated with the infringement. Finally, Article 1902 of the Civil Code on civil liability applies to users who fraudulently use services consisting of conditional access, or persons who design or install computer software aimed at circumventing the technological measures intended to protect services from unauthorised use.
18. The Commission points out that the drawing up of a draft bill for the basic law cannot be considered a valid and adequate measure to implement a directive. It adds that the provisions relied on by the Spanish Government are clearly insufficient to ensure the correct and complete transposition of Articles 4 and 5 of the Directive into the Spanish legal system, all the more so because Article 4(1) of the Criminal Code precludes the application of " criminal laws" to " cases other than those which they expressly cover" .
19. In relation to Article 270 of the Criminal Code, the Commission points out that it refers to intellectual property, whilst the Directive is aimed at protecting the interest the providers of services consisting of conditional access have in obtaining remuneration for their provision of services. Concerning the offence of computer fraud laid down in Article 248(2) of the Criminal Code, the Commission claims that that presupposes the existence of an unauthorised transfer of assets to the detriment of a third party, whereas the Directive covers the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices and the use of commercial communications to promote them. As regards Article 255 of the Criminal Code, the Commission points out that it applies to fraud for personal gain whereas the Directive covers infringements of a commercial nature.
20. Regarding the provisions cited by the Spanish Government in the alternative, the Commission claims that none of them implements the obligation on the Member States to adopt measures intended to ensure an inquiry into the request by providers of protected services that illicit devices be removed from commercial channels.
21. To substantiate its argument that Spanish law already has measures which transpose the Directive, the Spanish Government also relies on two judgments given by two different courts punishing the infringements covered by the Directive. The first is the judgment of the Juzgado de lo Penal (Criminal Court) No 1 of Cordoba (Spain) of 11 February 2002 in which the distribution of " pirated cards" to the detriment of Canal Satélite Digital SL was found to constitute fraud and an infringement of intellectual property rights for which the perpetrator was sentenced to imprisonment and a fine, and was ordered to pay compensation to the company. Secondly, it cited the judgment of the Juzgado de lo Penal No 9 of Barcelona (Spain) in which the sale to third parties of " pirated cards" for the unauthorised decoding of the signal of a cable television operator was held to constitute fraud.
22. According to the Spanish Government, protection afforded under the Criminal Code to providers of services based on conditional access is more effective than that required under the Directive and the introduction of new categories of offences in the Criminal Code could lead to confusion.
23. The Commission takes the view that these judgments are isolated cases and should be read narrowly, and are solely concerned with the application of Article 248(2) of the Criminal Code to the sale or distribution of unauthorised decoding cards or " pirated cards" , infringements which constitute fraud. In addition, there is no case-law of the Tribunal Supremo (Supreme Court) (Spain) supporting the Spanish Government ' s interpretation of the national legal system. Findings of the Court
24. Contrary to the Spanish Government ' s contentions, the two judgments that it relies on cannot constitute, per se, proof of the transposition of the Directive into the Spanish legal system.
25. As the Commission has pointed out, these are isolated cases and must be read narrowly and are solely concerned with the application of Article 248(2) of the Criminal Code to the sale or distribution of unauthorised decoding cards. Even if the decisions came from the supreme court, it would be necessary in any event to show that the Spanish legal system contains provisions for attaining the objectives referred to in the Directive by prohibiting all the activities stipulated in the Directive, in particular in Article 4 thereof.
26. It is true that the Court has held that transposing a directive into national law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific express legal provision of national law and that the general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner (see inter alia Case 29/84 Commission v Germany [1985] ECR 1661, paragraph 23, Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 9, and Case C-217/97 Commission v Germany [1999] ECR I-5087, paragraph 31).
27. Regarding the provisions cited by the Spanish Government, Article 270 of the Criminal Code refers only to infringements of the rights of owners of intellectual property, whereas the Directive, rather than that, concerns illicit devices. Article 248 of the Criminal Code requires a transfer of an asset, whilst the Directive applies to the mere possession of such devices. Article 255 of the Criminal Code refers to fraud, whilst the Directive prohibits conduct on a strict liability basis. Likewise, under Article 4(c) of the Directive, the promotion of illicit devices must be prohibited by the Member States, whereas it is not in Spanish law. As the Commission has correctly pointed out, the provisions of the Civil and Criminal Codes and the Codes of Civil and Criminal Procedure, cited in the alternative by the Spanish Government, cannot overcome this deficiency.
28. It follows that the Spanish legislation does not prohibit all the activities referred to in the Directive and that the provisions relied on by the Spanish Government are insufficient to ensure the correct and complete transposition of Articles 4 and 5 of the Directive into the Spanish legal system. Even interpreting the Criminal Code in accordance with the Directive, the gaps and inadequacies found by the Commission cannot be filled or made good without breaching the principles of legality and legal certainty, which prevent sanctioning conduct which has not been clearly designated and expressly treated as an infringement by the Criminal Code.
29. Moreover, the Commission has also observed that the drawing up of a draft bill for the basic law cannot be considered a valid and adequate measure to implement a directive. It must therefore be held that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive, the Kingdom of Spain has failed to fulfil its obligations under that Directive.