32 Svea hovrätten held that there is no provision in Directive 2006/24 which precludes a party to a civil dispute from being ordered to disclose subscriber data to someone other than a public authority. It also dismissed the application for a referral to the Court of Justice.
33 Svea hovrätten also found that the audio book publishers had not adduced clear evidence that there was an infringement of an intellectual property right. It therefore decided to set aside the order for disclosure of data granted by Solna tingsrätten. The applicants in the main proceedings then appealed to the Högsta domstolen.
34 The Högsta domstolen is of the opinion that, notwithstanding the judgment in Case C-275/06 Promusicae [2008] ECR I-271 and the order in Case C-557/07 LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten [2009] ECR I-1227, doubts remain as to whether European Union law precludes the application of Article 53c of the Swedish Law on copyright, in so far as neither that judgment nor that order makes reference to Directive 2006/24.
35 In those circumstances, the Högsta domstolen decided to stay the proceedings and refer to the following questions to the Court for a preliminary ruling:
'1. Does [Directive 2006/24], and in particular Articles 3 [to] 5 and 11 thereof, preclude the application of a national provision which is based on Article 8 of [Directive 2004/48] and which permits an internet service provider in civil proceedings, in order to identify a particular subscriber, to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided a specific IP address, which address, it is claimed, was used in the infringement? The question is based on the assumption that the applicant has adduced clear evidence of the infringement of a particular copyright and that the measure is proportionate.
2. Is the answer to Question 1 affected by the fact that the Member State has not implemented [Directive 2006/24] despite the fact that the period prescribed for implementation has expired?'
Consideration of the questions referred
36 By its two questions, which it is appropriate to consider together, the national court asks, in essence, whether Directive 2006/24 is to be interpreted as precluding the application of a national provision based on Article 8 of [Directive 2004/48] which, in order to identify a particular subscriber, permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP address which was allegedly used in the infringement, and whether the fact that the Member State concerned has not yet transposed Directive 2006/24, despite the period for doing so having expired, affects the answer to that question.
37 As a preliminary point, it must be noted, firstly, that the Court is starting from the premiss that the data at issue in the main proceedings have been retained in accordance with national legislation, in compliance with the conditions laid down in Article 15(1) of Directive 2002/58, a matter which it is for the national court to ascertain.
38 Secondly, Directive 2006/24, according to Article 1(1) thereof, aims to harmonise Member States' provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law.
39 Furthermore, as follows from Article 4 of Directive 2006/24, the data retained in accordance with that directive are to be provided only to the competent national authorities in specific cases and in accordance with the national law concerned.
40 Thus, Directive 2006/24 deals exclusively with the handling and retention of data generated or processed by the providers of publicly available electronic communications services or public communications networks for the purpose of the investigation, detection and prosecution of serious crime and their communication to the competent national authorities.
41 The material scope of Directive 2006/24 thus stated is confirmed by Article 11 thereof which states that, if such data were retained specifically for the purposes of Article 1(1) of the directive, Article 15(1) of Directive 2002/58 does not apply to those data.
42 However, as is apparent from recital 12 in the preamble to Directive 2006/24, Article 15(1) of Directive 2002/58/EC continues to apply to data retained for purposes, including judicial purposes, other than those referred to expressly in Article 1(1) of Directive 2006/24.
43 Thus, it follows from a combined reading of Article 11 and recital 12 of Directive 2006/24 that that directive constitutes a special and restricted set of rules, derogating from and replacing Directive 2002/58 general in scope and, in particular, Article 15(1) thereof.
44 With regard to the main proceedings, it must be noted that the legislation at issue pursues an objective different from that pursued by Directive 2006/24. It concerns the communication of data, in civil proceedings, in order to obtain a declaration that there has been an infringement of intellectual property rights.
45 That legislation does not, therefore, fall within the material scope of Directive 2006/24.
46 Accordingly, it is irrelevant to the main proceedings that the Member State concerned has not yet transposed Directive 2006/24, despite the period for doing so having expired.
47 None the less, in order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may also deem it necessary to consider provisions of European Union law to which the national court has not referred in its question (see, inter alia, Case C-107/98 Teckal [1999] ECR I-8121, paragraph 39, and Case C-2/07 Abraham and Others [2008] ECR I-1197, paragraph 24).
48 It must be noted that the facts in the main proceedings lend themselves to such rules of European Union law being taken into consideration.
49 The reference made by the national court, in its first question, to compliance with the requirement for clear evidence of an infringement of a copyright and to the proportionate nature of the injunction which would be issued under the transposing law at issue in the main proceedings and, as follows from paragraph 34 of the present judgment, to the judgment in Promusicae, cited above, suggests that the national court is also doubtful as to whether the provisions in question of that transposing law are likely to ensure a fair balance between the various applicable fundamental rights, as required by that judgment, which interpreted and applied various provisions of Directives 2002/58 and 2004/48.
50 Thus, the answer to such an implied question may be relevant to the resolution of the case in the main proceedings.
51 In order to give a useful answer, firstly, it is necessary to bear in mind that the applicants in the main proceedings seek the communication of the name and address of an internet subscriber or user using the IP address from which it is presumed that an unlawful exchange of files containing protected works took place, in order to identify that person.
52 It must be held that the communication sought by the applicants in the main proceedings constitutes the processing of personal data within the meaning of the first paragraph of Article 2 of Directive 2002/58, read in conjunction with Article 2(b) of Directive 95/46. That communication therefore falls within the scope of Directive 2002/58 (see, to that effect, Promusicae, paragraph 45).
53 It must also be noted that, in the main proceedings, the communication of those data is required in civil proceedings for the benefit of a copyright holder or his successor in title, that is to say, a private person, and not for the benefit of a competent national authority.
54 In that regard, it must be stated at the outset that an application for communication of personal data in order to ensure effective protection of copyright falls, by its very object, within the scope of Directive 2004/48 (see, to that effect, Promusicae, paragraph 58).
55 The Court has already held that Article 8(3) of Directive 2004/48, read in conjunction with Article 15(1) of Directive 2002/58, does not preclude Member States from imposing an obligation to disclose to private persons personal data in order to enable them to bring civil proceedings for copyright infringements, but nor does it require those Member States to lay down such an obligation (see Promusicae, paragraphs 54 and 55, and order in LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten, paragraph 29).
56 However, the Court pointed out that, when transposing, inter alia, Directives 2002/58 and 2004/48 into national law, it is for the Member States to ensure that they rely on an interpretation of those directives which allows a fair balance to be struck between the various fundamental rights protected by the European Union legal order. Furthermore, when implementing the measures transposing those directives, the authorities and courts of Member States must not only interpret their national law in a manner consistent with them, but must also make sure that they do not rely on an interpretation of them which would conflict with those fundamental rights or with the other general principles of European Union law, such as the principle of proportionality (see, to that effect, Promusicae, paragraph 68, and order in LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten, paragraph 28).
57 In the present case, the Member State concerned has decided to make use of the possibility available to it, as described in paragraph 55 of this judgment, to lay down an obligation to communicate personal data to private persons in civil proceedings.
58 It must be noted that the national legislation in question requires, inter alia, that, for an order for disclosure of the data in question to be made, there be clear evidence of an infringement of an intellectual property right, that the information can be regarded as facilitating the investigation into an infringement of copyright or impairment of such a right and that the reasons for the measure outweigh the nuisance or other harm which the measure may entail for the person affected by it or for some other conflicting interest.
59 Thus, that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality.
60 In those circumstances, such legislation must be regarded as likely, in principle, to ensure a fair balance between the protection of intellectual property rights enjoyed by copyright holders and the protection of personal data enjoyed by internet subscribers or users.
61 Having regard to the foregoing, the answer to the questions referred is that:
- Directive 2006/24 must be interpreted as not precluding the application of national legislation based on Article 8 of Directive 2004/48 which, in order to identify an internet subscriber or user, permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP address which was allegedly used in an infringement, since that legislation does not fall within the material scope of Directive 2006/24;
- it is irrelevant to the main proceedings that the Member State concerned has not yet transposed Directive 2006/24, despite the period for doing so having expired;
- Directives 2002/58 and 2004/48 must be interpreted as not precluding national legislation such as that at issue in the main proceedings insofar as that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality.
Costs
62 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC must be interpreted as not precluding the application of national legislation based on Article 8 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights which, in order to identify an internet subscriber or user, permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP address which was allegedly used in an infringement, since that legislation does not fall within the material scope of Directive 2006/24;
It is irrelevant to the main proceedings that the Member State concerned has not yet transposed Directive 2006/24, despite the period for doing so having expired;
Directives 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) and 2004/48 must be interpreted as not precluding national legislation such as that at issue in the main proceedings insofar as that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality.
[Signatures]
* Language of the case: Swedish.
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