C-360/00

2 — Bundesgesetzblatt 1965 l, p. 1273. 1 — Original language: Spanish. 3 — O r within 30 days of their first publication.

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In all other respects, the rights of foreign 7. Under Article 7 of the Berne Conven- authors were safeguarded under inter- tion, the term of protection granted is the national treaties. life of the author and fifty years after his death (paragraph 1), which is deemed to commence on 1 January of the ensuing year (paragraph 5). The contracting parties may, however, grant longer terms of protection (paragraph 6). 4. The protection granted to German nationals expires seventy years after the death of the author, with effect from 1 January of the ensuing year following death (Articles 64 and 69 of the UrhG). In any case, the term is that laid down in the legislation of the country in which protection is claimed. However, unless the legislation of that country otherwise pro- vides, the term must not exceed the term 5. Under Italian law, Article 25 of the Law fixed in the country of origin of the work of 22 April 1944 4and Article 1 of the (paragraph 8). In abbreviated form this Legislative Decree of 20 July 1945 5pro- scheme is customarily designated 'compari- vided that copyright was to last for a term son of the terms of protection' for short. of fifty-six years following death.

German legislation 'has not otherwise pro- vided', for the purposes of Article 7(8) of the Berne Convention. International law

9. The first paragraph of Article 12 EC 12. The works of Puccini were not pro- (formerly Article 6 of the EC Treaty) pro- tected in any of the Member States on vides that: 1 July 1995.

'Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality The facts and the main proceedings shall be prohibited.'

13. The applicant in the main proceedings, G. Ricordi & Co. Bühnen- und Musikver- Harmonisation of copyright protection lag GmbH ('Ricordi'), is part of a well- known publishing firm specialising in the publication of musical scores and librettos. It holds the rights of performance in the opera La Bohème by the Italian composer Giacomo Puccini, who died in 1924. 10. On 29 October 1993, the Council adopted Directive 93/98/EEC harmonising the term of protection of copyright and 7 — O J 1993 L 290. p. 9.

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16. After it first opened, La Bohème went Fenice, Venice, on 5 May 1897. 8 on to be performed worldwide: first in Palermo; then in Manchester and at the Hofoper, Berlin; in 1898, at the Opéra Comique, Paris, the Liceo, Barcelona, and the Teatro Príncipe Alfonso, Madrid; and, in 1900, at the Metropolitan Opera House, New York. On 5 April 1925, it became the last work to be staged at the Teatro Real, Madrid, before the latter's closure, which was to last until the 1960s. The soloists in

Puccini, following the advice of his editor, Ricordi, did likewise in 13 — Although opera was not performed at the Teatro Real Corriere della Sera. again until tne end of the 1990s, La Bohème was staged at the Teatro de la Zarzuela in 1964; in 1967, with Pilar 9 — The day after its first performance, the critic, Carlos Lorengar and Gianni Raimondi; in 1970, with Mirella Bersezio, wrote in La Stampa that 'La Bohème is not an Freni, Luciano Pavarotti, Maria Orán and Giuseppe Tadei,

Ed. Ricordi Americana, Buenos Aires, 1958, p. 127. entitled 'Fullness of Harmony' in The Magic Mountain, 11—Krause, E., Puccini, Ed. Alianza, Madrid, 1985, trans referring to the melodic phrase: 'Dami il braccio, mia Jacob Mir Mercader, p. 72. piccina.'

21. That was the basis upon which Ricordi 'Must the prohibition of discrimination in brought its action, which was upheld by the the first paragraph of Article 12 EC be Landgericht (Regional Court), the court of applied in cases where a foreign author had first instance with jurisdiction in civil already died when the Treaty entered into proceedings in which the sum at stake is force in the State of which he was a considerable and the civil liability of the national if, otherwise, the consequence, administration is at issue. under national law, would be unequal treatment as regards the term of protection of the foreign author's works and of those 15 — See point 3 above. of a national author who also died before 16 — See point 7 above. the entry into force of the Treaty?'

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Procedure before the Court of Justice and 93/98. That instrument established the observations of the parties principle that Article 12 EC is fully appli- cable to situations arising prior to 1958.

25. In addition to the parties to the main proceedings, the Government of the Federal Republic of Germany and the Commission participated in the proceedings. The Land 29. The Commission also contends that the Hessen is alone in proposing that the German legislation is incompatible with question should be answered in the Community law in providing for indirect negative. discrimination against those claiming under an author, since they would normally hold the same nationality as the author, as is the case with a person's heirs.

26. The Land Hessen claims that the unequal treatment at issue in these pro- ceedings stems not from the author's nationality but rather from disparities in national systems of protection. In its view only the scope of that protection is indi- rectly related to the author's nationality. Analysis of the question referred for a preliminary ruling

32. It is also clear that, in this case, copy- 35. The starting point for an analysis of right is being claimed by a company hold- whether the prohibition of Article 12 EC ing German nationality, since it is consti- applies specifically to copyright is, as all the tuted under German law. Despite the fact parties agree, the judgment in Phil Collins that it is possible to assign copyright, the and Others. 18 different treatment which it is afforded under German law could be regarded as constituting indirect discrimination based on nationality, since, statistically, that treatment affects citizens of other Member States far more than German nationals. 36. The disputes which gave rise to that preliminary ruling concerned the appli- cation of other provisions of the German law which form the basis of these proceed- ings. The Court was there required to determine whether it was compatible with Community law for a Member State to 33. It falls therefore to analyse the matter grant a national author the right to prohibit in more depth and to ask whether it is the marketing of an unauthorised record- appropriate to assess the difference in ing, of a show held abroad, while denying treatment as a barrier to the free movement that right to an author of another Member of goods and services. Such doubts arise State in the same situation. concerning the combined personal and financial, or economic, nature of, and the fame and fortune associated with, copy- right. 17 As a result, the restrictions per- mitted under Article 30 EC and the pro- hibition of discrimination on the ground of nationality might both apply, and it would be necessary to analyse the unequal treat- 37. Before answering that question ment separately in the light of each prin- directly, the Court considered in general ciple. terms whether copyright and related rights fell within the scope of application of the Treaty, pursuant to the first paragraph of Article 7, now the first paragraph of Article 12 EC.

41. That important declaration, stated in completely categorical and unconditional terms, serves as a basis for resolving the doubts which led the Bundesgerichtshof to make this reference. 39. The Court also held that copyright, like other exclusive rights conferred by literary and artistic property, is capable of affecting trade in goods and services and also competition within the Community. Such rights are therefore subject to the provi- 42. The factor which differentiates the sions of Articles 28 EC and 30 EC govern- present case from the case-law cited is that, ing the free movement of goods, 19 to unlike the British citizens Phil Collins and Articles 49 EC and 55 EC as regards the Cliff Richard, the Italian composer Gia- provision of services by copyright manage- como Puccini had already been dead for ment societies, 20 and finally to Community many decades when on 1 January 1958 the competition rules. 21 Treaty establishing the European Commu- nity, and with it the prohibition of dis- crimination on grounds of nationality, entered into force. It is appropriate to inquire whether that circumstance may lead to a solution other than the one proposed.

40. From all of the foregoing consider- ations the Court was unable to conclude that copyright which, owing to its effects 43. I can say at the outset that I do not believe that it does. For it to do so, the 19 — Judgment in Joined Cases 55/80 and 57/80 Musik-Vertrieb membran [1981] ECR 147, paragraph 8. prohibition of Article 12 EC would have to 20 —Judgment in Case 7/82 GVL v Commission [1983] ECR 483, paragraph 39. 21 —Judgment in Case 78/70 Deutsche Grammophon [1971] ECR 487, paragraph 10. 22 — The Phil Collins judgment, paragraph 27.

47. It is important to emphasise that the 44. The first paragraph of Article 12 EC removal of the nationality criterion is a states, in particularly unambiguous terms, direct result of the prohibition in Article 12 that any discrimination on the ground of EC. In other words, there is no need to nationality is prohibited. carry out the statistical evaluation or the assessment based on probability which are required for indirect discrimination. Fur- thermore, the German legislation in ques- tion cannot be said to be subsumed within the Court's definition of that concept. Direct discrimination also includes covert 45. That means that, unless it is justified on unequal treatment which, by the appli- objective grounds and is proportionate to cation of differentiating criteria other than the aim pursued, any unequal treatment nationality, leads in fact to the same based essentially on nationality is contrary result. 23 That is not the case here since to the Treaty, irrespective of whether it is the discrimination is linked to national- alleged by the victim in person or by a third ity. 24 party who is able to demonstrate a legit- imate interest.

would a rule which, for example, granted afforded under national law, or that there certain advantages to the great-grand- had been indirect discrimination in that, in children of Italian nationals, or to the percentage terms, the assignees of rights parents of Danish children. It would not from foreign authors also tend to be be necessary to ascertain whether, statis- foreign. tically, the majority of great-grandchildren of Italian nationals are Italians, or whether the parents of Danish children are, as a general rule, Danish. The prohibited dis- crimination would be caused by the unlaw- ful point of reference used, while the harm suffered would not be of primary import- ance. 50. The Court did not go down either route, choosing instead to pass over the issue and delivering the same judgment in that case as in Case C-92/92, where the direct victim had been the author him- self. 25 The Court confined itself to stating 48. There is support for that view, albeit by that the prohibition of discrimination on implication, in the case-law of the Court. the ground of nationality precludes the legislation of a Member State from denying to authors from other Member States, and those claiming under them, the right, accorded to nationals of that Member State, to prohibit the marketing in its national territory of a phonogram manu- 49. It may be inferred from the facts of factured without their consent. Case C-326/92, one of the cases which gave rise to the Phil Collins judgment, that the artist whose rights were in issue was no longer the proprietor of those rights when the dispute arose, since he had assigned them to a British company which had, in turn, assigned them to a German company. 51. From all the foregoing I conclude that the first paragraph of Article 12 EC must be construed as precluding or discrimina- tory the criterion of nationality from being taken into consideration in order to Had the subjective definition of discrimi- define — unfavourably — the content of nation on the ground of nationality pre- vailed, the Court would have had to hold either that the direct discrimination con- 25 — However, in his Opinion of 30 July 1993, Advocate General Jacobs did deal specifically with the factual sisted of a reduction in the economic differences. He concluded that, both where the assignee paid royalties to the performer and where such an expectations arising from the assignment obligation had not been entered into, the author would of rights by the author, as a result of the be an indirect victim of the discrimination, since, other- wise, the unequal treatment would amount to a reduction less favourable treatment which he was in the potential value of his rights vis-à-vis a German artist.

That assertion may be countered by the fact 54. One of the parties proposed a possible that the implementation, in Germany, of justification of the discriminatory measure. the mechanism for comparing of terms of The sole explanation advanced is that, protection, laid down in Article 7(8) of the since the system under Article 7(8) of the Berne Convention, not only reproduces, by Berne Convention permits lesser protection reference, the inequalities stemming from under the national law of the author, it the legislative differences between the therefore encourages the legislature of each Member States but also clearly discrimi- Member State to strengthen that protec- nates in favour of national authors, who tion, which is beneficial to the interests of are not entitled to protection greater than all authors. that granted to German authors. In addi- tion, in the likely event that the protection available in the Member State of origin is lower, that shorter term is to be taken into consideration. On the supposition that all the Member States were to implement a similar system, German authors would be entitled to the longest term of protection permitted in practice in each Member State, 55. That reasoning, while being legitimate whereas, in Germany, no author would be in the sphere of relationships governed by able to claim greater protection. The pro- international agreements, cannot be upheld tectionist effect inherent in the measure is in a scheme of integration such as the patently obvious. European Union, which is characterised by an obligation of solidarity between the Member States, thereby precluding a prac- tice which entails the unilateral imposition of legislative choices by national legis- latures. Indeed, in the absence of sufficient 53. It therefore appears, from the objective harmonisation, it cannot be assessed with- definition of discrimination on the ground out more that the German term of pro- of nationality which I have just set out, that tection of seventy years is automatically the issue of whether the person in question, preferable to the reduced term provided for

57. Finally, the Land Hessen refers to the solution adopted in Directive 93/98, which harmonises the terms of protection solely in relation to works which as at 1 July 1995 were protected in at least one Member State. 60. Since no hearing was held in these proceedings, I have been unable to inquire into the possible impact of a ruling given by the Court in the terms which I propose. The Court could, however, having examined the information at its disposal, in particular the widespread acceptance at the material time of the principle comparison of terms 58. In addition, Directive 93/98 does not in the Member States, 27 determine whether adopt the test of whether the author was there are considerations of legal certainty alive when the Treaty of Rome entered into which are sufficiently pressing to warrant force. In the light of the date actually limiting the retroactive effect of its case- chosen, numerous works will fall within law. the scope of the directive, notwithstanding the fact that their authors did not become Community citizens, which precludes the 27 — All the Member States were parties to the Berne Con- vention by that time and the comparison of terms mech- anism was recognised under German, Austrian, Belgian, Danish, Spanish, Finnish, French, Italian, Irish and Swed- 26 — See point 8 above. ish law.

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Conclusion

61. In the light of all of the foregoing, I propose that the Court of Justice should reply as follows to the question referred for a preliminary ruling by the Bundesgerichtshof:

A national provision which leads to lesser protection being afforded to a literary or artistic work by reason of the nationality of its author is contrary to the prohibition of discrimination on the ground of nationality in the first paragraph of Article 12 EC.