Productores de Música de España (Promusicae) v Telefónica de España SAU.

• Jurisdiction: European Union
• Celex Number: 62006CJ0275
• ECLI: ECLI:EU:C:2008:54
• Date: 29 January 2008
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-275/06

Case C-275/06

Productores de Música de España (Promusicae)

v

Telefónica de España SAU

(Reference for a preliminary ruling from the Juzgado de lo Mercantil nº 5 de Madrid)

(Information society – Obligations of providers of services – Retention and disclosure of certain traffic data – Obligation of disclosure – Limits – Protection of the confidentiality of electronic communications – Compatibility with the protection of copyright and related rights – Right to effective protection of intellectual property)

Summary of the Judgment

Approximation of laws – Harmonisation of certain aspects of copyright and related rights in the information society – Directive 2001/29 – Electronic commerce – Directive 2000/31 – Processing of personal data and the protection of privacy in the electronic communications sector – Directive 2002/58 – Enforcement of intellectual property rights – Directive 2004/48 – Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)

(TRIPs Agreement, Arts 41, 42 and 47; European Parliament and Council Directives 2000/31, 2001/29, 2002/58 and 2004/48)

Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce), Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, Directive 2004/48 on the enforcement of intellectual property rights, and Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) do not require the Member States to lay down an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings, in a situation in which a non-profit-making organisation of producers and publishers of musical and audiovisual recordings has brought proceedings seeking an order that a provider of internet access services disclose to the organisation the identities and physical addresses of certain subscribers, so as to enable civil proceedings to be brought for infringement of copyright.

Similarly, as to Articles 41, 42 and 47 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), in the light of which Community law must as far as possible be interpreted where it regulates a field to which that agreement applies, while they require the effective protection of intellectual property rights and the institution of judicial remedies for their enforcement, they do not contain provisions which require those directives to be interpreted as compelling the Member States to lay down an obligation to communicate personal data in the context of civil proceedings.

However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.

(see paras 60, 70, operative part)

JUDGMENT OF THE COURT (Grand Chamber)

29 January 2008 (*)

(Information society – Obligations of providers of services – Retention and disclosure of certain traffic data – Obligation of disclosure – Limits – Protection of the confidentiality of electronic communications – Compatibility with the protection of copyright and related rights – Right to effective protection of intellectual property)

In Case C‑275/06,

REFERENCE for a preliminary ruling under Article 234 EC by the Juzgado de lo Mercantil Nº 5 de Madrid (Spain), made by decision of 13 June 2006, received at the Court on 26 June 2006, in the proceedings

Productores de Música de España (Promusicae)

v

Telefónica de España SAU,

THE COURT (Grand Chamber),

composed of V. Skouris, President, C.W.A. Timmermans, A. Rosas, K. Lenaerts, G. Arestis and U. Lõhmus, Presidents of Chambers, A. Borg Barthet, M. Ilešič, J. Malenovský (Rapporteur), J. Klučka, E. Levits, A. Arabadjiev and C. Toader, Judges,

Advocate General: J. Kokott,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 5 June 2007,

after considering the observations submitted on behalf of:

– Productores de Música de España (Promusicae), by R. Bercovitz Rodríguez Cano, A. González Gozalo and J. de Torres Fueyo, abogados,

– Telefónica de España SAU, by M. Cornejo Barranco, procuradora, R. García Boto and P. Cerdán López, abogados,

– the Italian Government, by I.M. Braguglia, acting as Agent, assisted by S. Fiorentino, avvocato dello Stato,

– the Slovenian Government, by M. Remic and U. Steblovnik, acting as Agents,

– the Finnish Government, by J. Heliskoski and A. Guimaraes-Purokoski, acting as Agents,

– the United Kingdom Government, by Z. Bryanston-Cross, acting as Agent, and S. Malynicz, Barrister,

– the Commission of the European Communities, by R. Vidal Puig and C. Docksey, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 July 2007,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1), 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), 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, and corrigendum, OJ 2004 L 195, p. 16), and Articles 17(2) and 47 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1, ‘the Charter’).

2 The reference was made in the course of proceedings between Productores de Música de España (Promusicae) (‘Promusicae’), a non-profit-making organisation, and Telefónica de España SAU (‘Telefónica’) concerning Telefónica’s refusal to disclose to Promusicae, acting on behalf of its members who are holders of intellectual property rights, personal data relating to use of the internet by means of connections provided by Telefónica.

Legal context

International law

3 Part III of the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘the TRIPs Agreement’), which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (‘the WTO’), signed at 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), is headed ‘Enforcement of intellectual property rights’. That part includes Article 41(1) and (2), according to which:

‘1. Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.

2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.’

4 In Section 2 of Part III, ‘Civil and administrative procedures and remedies’, Article 42, headed ‘Fair and Equitable Procedures’, provides:

‘Members shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement …’

5 Article 47 of the TRIPs Agreement, headed ‘Right of Information’, provides:

‘Members may provide that the judicial authorities shall have the authority, unless this would be out of proportion to the seriousness of the infringement, to order the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the infringing goods or services and of their channels of distribution.’

Community law

Provisions relating to the information society and the protection of intellectual property, especially copyright

– Directive 2000/31

6 Article 1 of Directive 2000/31 states:

‘1. This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.

2. This Directive approximates, to the extent necessary for the achievement of the objective set out in paragraph 1, certain national provisions on information society services relating to the internal market, the establishment of service providers, commercial communications, electronic contracts, the liability of intermediaries, codes of conduct, out-of-court dispute settlements, court actions and cooperation between Member States.

3. This Directive complements Community law applicable to information society...