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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Schwibbert (Intellectual property) [2007] EUECJ C-20/05 (08 November 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C2005.html Cite as: [2007] EUECJ C-20/5, ECLI:EU:C:2007:652, [2007] EUECJ C-20/05, EU:C:2007:652, [2007] ECR I-9447 |
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(Directive 98/34/EC Procedure for the provision of information in the field of technical standards and regulations Obligation to communicate draft technical regulations National law requiring the distinctive sign of the national body responsible for collecting copyright royalties to be affixed to compact discs placed on the market Definition of ›technical regulation')
In Case C-20/05,
REFERENCE for a preliminary ruling under Article 234 EC from the Tribunale civile e penale di Forlì (Italy), made by decision of 14 December 2004, received at the Court on 21 January 2005, in the criminal proceedings relating to
Karl Josef Wilhelm Schwibbert,
composed of A. Rosas, President of the Chamber, U. Lõhmus (Rapporteur), J. Klučka, A. à Caoimh and P. Lindh, Judges,
Advocate General: V. Trstenjak,
Registrar: J. Swedenborg, Administrator,
having regard to the written procedure and further to the hearing on 25 April 2007,
after considering the observations submitted on behalf of:
Mr Schwibbert, by A. Sirotti Gaudenzi, avvocato,
SocietĂ Italiana degli Autori ed Editori, by M. Mandel and M. Siragusa, avvocati,
the Italian Government, by I.M. Braguglia, acting as Agent, and by S. Fiorentino and M. Massella Ducci Teri, avvocati dello Stato,
the Commission of the European Communities, by L. Pignataro and W. Wils, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 28 June 2007,
gives the following
Legal context
Community legislation
'1. Member States shall bring into force the measures necessary in order to comply with this Directive within 12 months following its notification and shall forthwith inform the Commission thereof.
2. Member States shall ensure that the texts of the main provisions of national law which they adopt in the field governed by this Directive are communicated to the Commission.'
'For the purposes of this Directive, the following meanings shall apply:
(1) 'product', any industrially manufactured product and any agricultural product, including fish products;
...
(3) 'technical specification', a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures.
...
(4) 'other requirements', a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing;
...
(11) 'technical regulation', technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider.
...'
National legislation
'1. Any person who:
...
(c) sells or rents video cassettes, music cassettes or any other medium containing phonograms or videograms of cinematographic or audiovisual works or sequences of moving images which do not bear the mark of the Italian Society of Authors and Publishers (SIAE) in accordance with this law and with the implementing regulation
shall be punished with a term of imprisonment of between three months and three years and with a fine of between ITL 500 000 and ITL 6 000 000.
...'
The dispute in the main proceedings and the question referred for a preliminary ruling
'Are the national provisions concerning the affixing of the SIAE marking compatible with Article 3 EC, Articles 23 EC to 27 EC, Articles 1, 8, 10 and 11 of Directive 98/34 and Directives 92/100 and 2001/29?'
The question referred for a preliminary ruling
Admissibility
Substance
Costs
On those grounds, the Court (Third Chamber) hereby rules:
Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that national provisions such as those at issue in the main proceedings in so far as such provisions introduced, after the implementation of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, the obligation to affix the distinctive sign 'SIAE' to compact discs of works of figurative art for the purposes of marketing them in the Member State concerned constitute a technical regulation which, if not notified to the Commission, cannot be invoked against an individual.
[Signatures]
* Language of the case: Italian.