Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU: ECJ 18 Jul 2007

The provisions of article 13, as referred to in article 15(1) of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector ([2002] OJ L201/37) must be interpreted as ‘expressing the Community legislature’s intention not to exclude from their scope the protection of the right to property or situations in which authors seek to obtain that protection in civil proceedings’.
ECJ ‘The present reference for a preliminary ruling thus raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other.
The mechanisms allowing those different rights and interests to be balanced are contained, first, in Directive 2002/58 itself, in that it provides for rules which determine in what circumstances and to what extent the processing of personal data is lawful and what safeguards must be provided for, and in the three directives mentioned by the national court, which reserve the cases in which the measures adopted to protect the rights they regulate affect the protection of personal data. Secondly, they result from the adoption by the Member States of national provisions transposing those directives and their application by the national authorities (see, to that effect, with reference to Directive 95/46, Lindqvist at [82]).
As to those directives, their provisions are relatively general, since they have to be applied to a large number of different situations which may arise in any of the Member States. They therefore logically include rules which leave the Member States with the necessary discretion to define transposition measures which may be adapted to the various situations possible (see, to that effect, Lindqvist at [84]).
That being so, the Member States must, when transposing the directives mentioned above, take care to rely on an interpretation of the directives 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, to that effect, Lindqvist at [87]; and Ordre des Barreaux Francophones and Germanophone v Conseil des Ministres (C-305/05) [2007] 3 C.M.L.R. 28 at [28]).
Moreover, it should be recalled here that the Community legislature expressly required, in accordance with Art.15(1) of Directive 2002/58, that the measures referred to in that paragraph be adopted by the Member States in compliance with the general principles of Community law, including those mentioned in Art.6(1) and (2) TEU.
In the light of all the foregoing, the answer to the national court’s question must be that Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright 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.’
C-275/06, [2007] EUECJ C-275/06, [2008] 2 CMLR 17
Bailii
Directive 2002/58/EC 15(1)
Cited by:
See AlsoProductores de Musica de Espana (Promusicae) v Telefonica de Espana SAU ECJ 29-Jan-2008
ECJ 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 . .
CitedBritish Telecommunications Plc and Another, Regina (on The Application of) v The Secretary of State for Business, Innovation and Skills Admn 20-Apr-2011
bt_ssbisAdmn11
The claimant sought judicial review of legislative provisions requiring Internet Service Providers to become involved in regulation of copyright infringements by its subscribers. They asserted that the Act and proposed Order were contrary to . .
CitedThe Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .

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Updated: 04 February 2021; Ref: scu.259232