Article 17 - Right to property
Article 52 - Scope and interpretation
Key facts of the case:
Reference for a preliminary ruling – Intellectual and industrial property – Copyright – Directive 2001/29/EC – Articles 2 to 4 – Exclusive rights – Copyright protection for subject matter of applied art the country of origin of which is not a Member State – Berne Convention – Article 2(7) – Criterion of material reciprocity – Division of competences between the European Union and its Member States – Application by the Member States of the criterion of material reciprocity – First paragraph of Article 351 TFEU
Outcome of the case:
On those grounds, the Court (First Chamber) hereby rules:
54. In those circumstances, it must be held that, by its second to fourth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 2(a) and Article 4(1) of Directive 2001/29, read in conjunction with Article 17(2) and Article 52(1) of the Charter, must be interpreted as precluding Member States from applying the criterion of material reciprocity laid down in the second sentence of Article 2(7) of the Berne Convention in respect of a work of applied art the country of origin of which is a third country and the author of which is a national of a third country.
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69. Second, in any event, since the intellectual property rights referred to in paragraph 66 of the present judgment are protected under Article 17(2) of the Charter, any limitation on the exercise of those rights must, in accordance with Article 52(1) of the Charter, be provided for by law and respect the essence of those rights and freedoms.
70. In the present case, it must be held that the application, by a Member State, of the criterion of material reciprocity laid down in the second sentence of Article 2(7) of the Berne Convention may constitute such a limitation, inasmuch as that application is liable to deprive the potential holder of those rights of the enjoyment and exercise thereof in a part of the internal market, namely in the territory of the Member State applying that clause.
71. As is apparent from Article 52(1) of the Charter, such a limitation must be provided for by law.
79. While the EU legislature has decided to apply a criterion of material reciprocity, first, to Article 7(1) of Directive 2006/116 as regards the term of protection, and, second, to Article 7(1) of Directive 2001/84 as regards the resale right, in accordance with Article 7(8) and Article 14ter(2) of the Berne Convention, that legislature has not, by contrast, included in Directive 2001/29 or in any other provision of EU law a limitation of the exclusive rights granted to authors by Article 2(a) and Article 4(1) of that directive in the form of a criterion of material reciprocity such as that laid down in the second sentence of Article 2(7) of the Berne Convention. In that regard, as has been stated in paragraph 72 of the present judgment, it is for the EU legislature alone, and not the national legislatures, in accordance with Article 52(1) of the Charter, to provide, by means of EU legislation, whether the grant in the European Union of the rights laid down in Article 2(a) and Article 4(1) of that directive should be limited (see, to that effect, judgment of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraphs 88 and 91).
80. In the light of all the foregoing considerations, the answer to the second to fourth questions is that Article 2(a) and Article 4(1) of Directive 2001/29, read in conjunction with Article 17(2) and Article 52(1) of the Charter, must be interpreted as meaning that, as EU law currently stands, they preclude Member States from applying, in national law, the criterion of material reciprocity laid down in the second sentence of Article 2(7) of the Berne Convention in respect of a work of applied art the country of origin of which is a third country and the author of which is a national of a third country. It is for the EU legislature alone, in accordance with Article 52(1) of the Charter, to provide, by means of EU legislation, whether the grant in the European Union of the rights laid down in Article 2(a) and Article 4(1) of that directive should be limited.