Christian Liffers v Producciones Mandarina SL and Mediaset España Comunicación SA, anciennement Gestevisión Telecinco SA.

• Jurisdiction: European Union
• Celex Number: 62015CJ0099
• ECLI: ECLI:EU:C:2016:173
• Date: 17 March 2016
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-99/15

JUDGMENT OF THE COURT (Fifth Chamber)

17 March 2016 (*1 )

‛Reference for a preliminary ruling — Intellectual property — Directive 2004/48/EC — Article 13(1) — Audiovisual work — Infringing activity — Damages — Rules for calculation — Lump sum — Moral prejudice — Inclusion’

In Case C‑99/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 12 January 2015, received at the Court on 27 February 2015, in the proceedings

Christian Liffers

v

Producciones Mandarina SL,

Mediaset España Comunicación SA, formerly Gestevisión Telecinco SA,

THE COURT (Fifth Chamber),

composed of J.L. da Cruz Vilaça, President of the Chamber, F. Biltgen, A. Borg Barthet, E. Levits and M. Berger (Rapporteur), Judges,

Advocate General: M. Wathelet,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— Mr Liffers, by E. Jordi Cubells, abogado,

— Producciones Mandarina SL, by A. González Gozalo, abogado,

— Mediaset España Comunicación SA, by R. Seel, abogado,

— the Spanish Government, by M. Sampol Pucurull, acting as Agent,

— the German Government, by T. Henze and J. Kemper, acting as Agents,

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

— the Polish Government, by B. Majczyna, acting as Agent,

— the European Commission, by E. Gippini Fournier and F. Wilman, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 19 November 2015,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 13(1) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45).

2 The request has been made in proceedings between, on the one hand, Mr Liffers and, on the other, Producciones Mandarina SL (‘Mandarina’) and Mediaset España Comunicación SA, formerly Gestevisión Telecinco SA (‘Mediaset’), concerning an action for infringement of an intellectual property right.

Legal context

EU law

3 Recitals 10, 17 and 26 of Directive 2004/48 state as follows: ‘(10) The objective of this Directive is to approximate [the] legislative systems [of the Member States] so as to ensure a high, equivalent and homogeneous level of protection in the Internal Market. ... (17) The measures, procedures and remedies provided for in this Directive should be determined in each case in such a manner as to take due account of the specific characteristics of that case, including the specific features of each intellectual property right and, where appropriate, the intentional or unintentional character of the infringement. ... (26) With a view to compensating for the prejudice suffered as a result of an infringement committed by an infringer who engaged in an activity in the knowledge, or with reasonable grounds for knowing, that it would give rise to such an infringement, the amount of damages awarded to the rightholder should take account of all appropriate aspects, such as loss of earnings incurred by the rightholder, or unfair profits made by the infringer and, where appropriate, any moral prejudice caused to the rightholder. As an alternative, for example where it would be difficult to determine the amount of the actual prejudice suffered, the amount of the damages might be derived from elements such as the royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question. The aim is not to introduce an obligation to provide for punitive damages but to allow for compensation based on an objective criterion while taking account of the expenses incurred by the rightholder, such as the costs of identification and research.’

4 Paragraph 1 of Article 13 of that directive, entitled ‘Damages’, provides: ‘Member States shall ensure that the competent judicial authorities, on application of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the rightholder damages appropriate to the actual prejudice suffered by him/her as a result of the infringement. When the judicial authorities set the damages: (a) they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the rightholder by the infringement; or (b) as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question. ...’

Spanish law

5 Article 140 of the consolidated version of the Law on Intellectual Property, which sets out, clarifies and harmonises the legislative provisions in force in that area and was approved by Royal Legislative Decree 1/1996 of 12 April 1996, (Real Decreto Legislativo 1/1996, por el que se aprueba el texto refundido de la Ley de Propiedad Intelectual, regularizando, aclarando y armonizando las disposiciones legales vigentes sobre la materia) (BOE No 97, p. 14369), as amended by Law 19/2006 of 5 June 2006 extending the means of protection of intellectual and industrial property rights and establishing procedural rules to facilitate the application of various EU regulations (ley 19/2006, por la que se amplían los medios de tutela de los derechos de propiedad intelectual e industrial y se establecen normas procesales para facilitar la aplicación de diversos reglamentos comunitarios) (BOE No 134, p. 21230) (‘Law on Intellectual Property’), provides: ‘1. The damages owed to the injured rightholder shall include not only the value of the loss that he has suffered, but also that of the loss of earnings incurred as a result of the infringement of his right. The amount of damages may include, where appropriate, the investigation costs incurred in order to obtain reasonable evidence of the commission of the infringement at issue. 2. The damages for prejudice shall be set, at the choice of the injured party, in accordance with one of the following criteria: (a) The negative economic consequences, including lost profits suffered by the injured party and the profits obtained by the infringing party through the unlawful use. Where there...