In the Opinion published on 11 June 2015, Advocate General Cruz Villalón suggests that the EU Court of Justice should respond to the reference by the Cour d’appel de Bruxelles as follows:
1. Art. 5(2)(a) of Directive 2001/29 allows EU Member States to implement a modulated equipment levy system for multi-functional devices on the basis of the individual characteristics of the user (private person or legal body) and/or the aim for which the equipment is used (private use or professional use), as long as the compensation is in correlation to the harm occurred and the differentiation is based on objective, transparent and non-discriminatory criteria. However, member states are under no obligation at all to provide for such a modulated equipment levy system.
2. Art. 5(2)(a) of Directive 2001/29 allows provisions on a national level, which:
• foresee an equipment levy to be paid by the producers, importers or purchasers, as long as the criteria underpinning the levy (e.g. speed, destination, …) are relevant, coherent and non-discriminatory, the purchasers can pass on the payment duty to users, and the amount to be paid is appropriate in view of the possible harm towards the rightholders; OR
• provide for a proportional operator fee to be paid by users or those who provide the equipment in question; the operator levy can follow different tariffs (i.e. based on cooperation of the debtor or not), as long as these are coherent and non-discriminatory, and as long as the difference between the tariffs in question is based on objective, fair and proportionate criteria.
However, Art. 5(2)(a) of Directive 2001/29 does not allow provisions on a national level which enable a system of a subsequent and cumulative equipment levy and a proportional operator fee, to be paid by the same user, without considering the actually paid amount for the equipment levy and without enabling any refund or discount thereof (upon payment of the subsequent proportional operator fee) in this regard.
3. Art. 5(2)(a) of Directive 2001/29 does not permit EU Member States to give a part of the amount to publishers for works created by authors, without obliging the publishers to – at least indirectly – pass on this part to the authors.
However, Member States are free to implement a levy system which permits remuneration for publishers, as a sui generis right outside the scope of the Directive for their own harm, as long as authors do not incur any disadvantage regarding Art. 5(2)(a) and 5(2)(b) of Directive 2001/29.
4. Art. 5(2)(a) of Directive 2001/29 does not permit provisions on a national level which enable a remuneration system for copies of sheet music or illegal reproductions.
The Opinion of the Advocate General is not binding. The EU Court of Justice is expected to publish its decision towards the end of 2015.
The complete Opinion (available in several languages, but not yet in English) is available here: