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Phil Collins v Imtrat Handelsgesellschaft mbH; Patricia Im-und

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Phil Collins v Imtrat Handelsgesellschaft mbH; Patricia Im-und Powered By Docstoc
					Phil Collins v Imtrat Handelsgesellschaft mbH; Patricia Im-und Export
Verwaltungsgesellschaft mbH and Another v EMI Electrola GmbH
Joined Cases C-92/92 and C-326/92

Before O. Due, President and Judges G. F. Mancini, J. C. Moitinho de Almeida, D.
A. O. Edward, R. Joliet, F. A. Schockweiler, F. Grevisse, M. Zuleeg and J. L.
Murray

Advocate General F. G. Jacobs
In its judgment the European Court of Justice held as follows:
Scope of the questions
In proceedings under article 177 of the Treaty, the Court might not rule on the
interpretation of national laws and regulations or on the conformity of such measures
with Community law. Consequently, it could not interpret the provisions of the UrhG.
The Court might only provide the national court with the criteria for interpretation based
on Community law which would enable that court to solve the legal problem with which
it was faced.
The questions referred concerned the first paragraph of article 7 of the Treaty which laid
down the general principle of non-discrimination on the ground of nationality. That
provision stated expressly that the prohibition of discrimination applied only within the
scope of application of the Treaty.
Applicability of the EEC Treaty to copyright
It was first necessary to deal with the question whether copyright and related rights fell
within the scope of the first paragraph of article 7 of the Treaty and whether the general
principle of non-discrimination laid down by that paragraph was, consequently,
applicable to those right.s
In the present state of Community law, and in the absence of Community rules for the
harmonisation of national legislation, it was for the member states, subject to the
observance of the relevant international conventions, to determine the conditions and
detailed rules for the protection of literary and artistic property.
The specific subject-matter of those rights, as governed by national legislation, was to
ensure the protection of moral and economic rights of their holders. The protection of
moral rights enabled authors and artists to prevent any distortion, mutilation or other
changes to a work which might be detrimental to their honour or their reputation.
Copyright and related rights also had economic characteristics in as much as they
provided for the possibility of the right to exploit commercially the marketing of the
protected work, particularly in the form of licences granted in return for payment of
royalties.
Like other industrial or commercial property rights, exclusive rights conferred by literary
and artistic property were likely to affect trade in goods and services as well as
competitive relationships within the Community. For that reason those rights, although
governed by national legislation, were subject to the requirements of the Treaty and
therefore fell within its scope.
It followed that copyright and related rights, which, because of their effect on intra-
Community trade in goods and services, fell within the scope of application of the Treaty,
were necessarily subject to the general principle of non-discrimination laid down in the
first paragraph of article 7 of the Treaty, without it being necessary to make specific
references to articles 30, 36, 59 and 66 of the Treaty.
Discrimination
It was then necessary to consider whether the first paragraph of article 7 of the Treaty
prohibited the legislation of a member state from preventing authors and performing
artists of other member states from exercising the right, which was granted by the same
legislation to nationals, to prohibit the distribution within the national territory of a
phonogram manufactured without their consent where the performance had been give
outside the member state.
Imtrat and Patricia maintained that the difference between German nationals and
nationals of other member states which had arisen in the two cases was objectively
justified by the disparities between national legislation in a matter of copyright and by the
fact that not all of the member states had yet accepted the Rome Convention of October
26, 1961 for the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations.
It was common ground that article 7 was not concerned with any disparities in treatment
or the distortions which might result, for the persons and undertaking subject to the
jurisdiction of the Community, from divergences existing between the laws of the various
member states, so long as the latter affected all persons subject to them, in accordance
with objective criteria and without regard to their nationality.
Therefore neither the disparities between national legislation on the protection of
copyright and related rights, nor the fact that not all of the member states had yet ratified
the Rome Convention could justify an infringement of the principle of non-discrimination
laid down by the first paragraph of article 7 of the Treaty.
By prohibiting any discrimination on the ground of nationality, article 7 required that
persons in a situation governed by Community law be placed on a completely equal
footing with nationals of a member state. In so far as that principle was applicable it
therefore precluded a member state from making the grant of an exclusive right subject to
a condition of being a national of that state.
Effects of article 7(1)
Finally it was necessary to consider whether the first paragraph of article 7 of the Treaty
might be relied upon directly before a national court by an author or performer from
another member state, or their successors in title, in order to request the benefit of
protection granted to nationals.
The right to equal treatment laid down by the first paragraph of article 7 of the Treaty
was conferred directly by Community law. That right might, therefore, be relied upon
before a national court in order to ask it to set aside any discriminatory provisions of a
national law which refused nationals of other member states the protection which they
granted to nationals.
On those grounds, the Court of Justice, ruled:

        1 Copyright and related rights came within the scope of application of the Treaty
       within the meaning of the first paragraph of article 7; the general principle of non-
       discrimination laid down by that article was consequently applicable to those
       rights.
     2 The first paragraph of article 7 of the Treaty was to be interpreted as
    preventing the legislation of a member state from excluding authors and
    performing artists of other member states, and their successors in title, from the
    right granted by the same legislation to nationals, to prohibit the distribution on
    national territory, of a phonogram manufactured without their consent, where the
    performance had been given outside the national territory.
     3 The first paragraph of article 7 of the Treaty was to be interpreted as meaning
    that the principle of non-discrimination which it laid down might be directly
    relied upon before a national court by an author or artist of another member state,
    or by their successors in title, in order to claim the benefit of the protection
    granted to national authors and artists.

				
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