Levola Hengelo BV v Smilde Foods BV.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Vilaras
• ECLI: ECLI:EU:C:2018:899
• Docket Number: C-310/17
• Date: 13 November 2018
• Procedure Type: Cuestión prejudicial - sobreseimiento

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

13 November 2018 (*)

(Reference for a preliminary ruling — Intellectual property — Harmonisation of certain aspects of copyright and related rights in the information society — Directive 2001/29/EC — Scope — Article 2 — Reproduction rights — Concept of ‘work’ — Taste of a food product)

In Case C‑310/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Gerechtshof Arnhem-Leeuwarden (Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands), made by decision of 23 May 2017, received at the Court on 29 May 2017, in the proceedings

Levola Hengelo BV

v

Smilde Foods BV,

THE COURT (Grand Chamber),

Composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Arabadjiev, M. Vilaras (Rapporteur), E. Regan, T. von Danwitz and C. Toader, Presidents of Chamber, A. Rosas, E. Juhász, M. Ilešič, M. Safjan, C.G. Fernlund, C. Vajda and S. Rodin, Judges,

Advocate General: M. Wathelet,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 4 June 2018,

after considering the observations submitted on behalf of:

– Levola Hengelo BV, by S. Klos, A. Ringnalda and J.A.K. van den Berg, advocaten,

– Smilde Foods BV, by T. Cohen Jehoram and S.T.M. Terpstra, advocaten,

– the Netherlands Government, by C.S. Schillemans, acting as Agent,

– the French Government, by D. Segoin and D. Colas, acting as Agents,

– the Italian Government, by G. Palmieri, acting as Agent, and by P. Gentili, avvocato dello Stato,

– the United Kingdom Government, by G. Brown and Z. Lavery, acting as Agents, and by N. Saunders, Barrister,

– the European Commission, by J. Samnadda and F. Wilman, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 July 2018,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the concept of a ‘work’, as referred to in Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

2 The request has been made in proceedings between Levola Hengelo BV (‘Levola’) and Smilde Foods BV (‘Smilde’) concerning an alleged infringement, by Smilde, of Levola’s intellectual property rights relating to the taste of a food product.

Legal context

International law

3 Article 1 of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as amended on 28 September 1979 (‘the Berne Convention’), provides:

‘The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.’

4 Article 2(1) and (2) of the Berne Convention states:

‘(1) The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.’

5 Under Article 9(1) of the Berne Convention, authors of literary and artistic works protected by that convention are to have the exclusive right of authorising the reproduction of these works, in any manner or form.

6 Article 9 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which is in Annex 1 C to the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), provides as follows:

‘1. Members shall comply with Articles 1 through 21 of the Berne Convention ... and the Appendix thereto. ...

2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’

7 The World Intellectual Property Organisation (‘WIPO’) adopted in Geneva on 20 December 1996 the WIPO Copyright Treaty, which entered into force on 6 March 2002. That treaty was approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6; ‘the WIPO Copyright Treaty’). According to Article 1(4) of the WIPO Copyright Treaty:

‘Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.’

8 Article 2 of that treaty states:

‘Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’

European Union law

Directive 2001/29

9 Articles 1 to 4 of Directive 2001/29 contain the following provisions:

‘Article 1

Scope

1. This Directive concerns the legal protection of copyright and related rights in the framework of the internal market, with particular emphasis on the information society.

2. Except in the cases referred to in Article 11, this Directive shall leave intact and shall in no way affect existing [EU] provisions relating to:

(a) the legal protection of computer programs;

(b) rental right, lending right and certain rights related to copyright in the field of intellectual property;

(c) copyright and related rights applicable to broadcasting of programmes by satellite and cable retransmission;

(d) the term of protection of copyright and certain related rights;

(e) the legal protection of databases.

Article 2

Reproduction right

Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

(a) for authors, of their works;

...

Article 3

Right of communication to the public of works and right of making available to the public other subject matter

1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a...