CJEU - C-110/15 / Judgment Microsoft Mobile Sales International Oy and Others v Ministero per i beni e le attività culturali (MiBAC) and Others

Key facts of the case:

Reference for a preliminary ruling — Approximation of laws — Intellectual property — Copyright and related rights — Directive 2001/29/EC — Exclusive right of reproduction — Exceptions and limitations — Article 5(2)(b) — Private copying exception — Fair compensation — Conclusion of agreements governed by private law to determine the criteria for exemption from payment of fair compensation — Request for reimbursement of compensation confined to the final user

Results (sanctions) and key consequences of the case:

Court (Second Chamber) hereby rules:

EU law, in particular Article 5(2)(b) of 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, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that, on the one hand, subjects exemption from payment of the private copying levy for producers and importers of devices and media intended for use clearly unrelated to private copying to the conclusion of agreements between an entity which has a legal monopoly on the representation of the interests of authors of works, and those liable to pay compensation, or their trade associations, and, on the other hand, provides that the reimbursement of such a levy, where it has been unduly paid, may be requested only by the final user of those devices and media.

Paragraphs referring to EU Charter: 
  1. However, the Court has noted that the exceptions provided for in Article 5 of Directive 2001/29 must be applied in a manner consistent with the principle of equal treatment, affirmed in Article 20 of the Charter of Fundamental Rights of the European Union, which, according to the Court’s established case-law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraphs 31 and 32 and the case-law cited).
  2. Member States may not therefore lay down detailed fair compensation rules that would discriminate, unjustifiably, between the different categories of economic operators marketing comparable goods covered by the private copying exception or between the different categories of users of protected subject matter (judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 33 and the case-law cited).
  3. In the present case, it must be noted that the legislation at issue in the main proceedings does not make it possible to ensure equal treatment in every case between the producers and importers required to pay the private copying levy, who might be in comparable situations.
  4. First, that legislation, which, as noted in paragraph 40 of the present judgment, does not contain any generally applicable provision exempting from payment of the private copying levy producers and importers who show that the devices and media were acquired by persons other than natural persons, for purposes clearly unrelated to private copying, merely imposes an obligation to use best endeavours on the SIAE, which is required only to ‘promote’ the conclusion of agreement protocols with persons required to pay the private copying levy. It follows that producers and importers in comparable situations may be treated differently, depending on whether or not they have concluded an agreement protocol with the SIAE.
  5. Next, that legislation, in particular Article 4 of the technical annex, does not lay down objective and transparent criteria to be satisfied by persons required to pay fair compensation or by their trade associations for the purposes of concluding such agreement protocols, since it refers merely, by way of example, to the exemption ‘in the event of the professional use of devices or media or in respect of certain devices for video games’, while the exemptions applied in practice may, moreover, in accordance with the actual wording of that article, be objective or subjective in nature.