C-58/02

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OPINION OF MR GEELHOED — CASE C-58/02

I I — Legal framework — information society services within the meaning of Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provi- sion of information in the field of technical standards and regulations and of rules on information society A — Community law services,

5. According to Article 1 of Directive 98/84, the objective of the directive is to approximate provisions in the Member or the provision of conditional access to the States concerning measures against illicit above services considered as a service in its devices which give unauthorised access to own right'. protected services.

In addition, Article 2 of the Directive provides that 'conditional access shall mean 6. Article 2 defines protected services as any technical measure and/or arrangement 'any of the following services, where pro- whereby access to the protected service in vided against remuneration and on the an intelligible form is made conditional basis of conditional access: upon prior individual authorisation'.

— television broadcasting, as defined in 7. Article 4 of the Directive states: Article 1(a) of Directive 89/552/EEC, 'Member States shall prohibit on their territory all of the following activities:

8. Article 5 of the Directive lays down the following conditions, which sanctions and remedies must meet if the prohibitions provided for in Article 4 are to be effective: 10. First, the Spanish Government adduces Article 270 of the Criminal Code, which provides that 'anyone who, for profit and to the detriment of a third party, repro- duces, plagiarises, distributes or publicly broadcasts, in whole or in part, a literary, artistic or scientific work, or an artistic '1. The sanctions shall be effective, dis- reworking, rendition or performance of suasive and proportionate to the poten- such a work, regardless of the medium or tial impact of the infringing activity. the means by which it is broadcast, without the authorisation of the holders of the relevant intellectual property rights or their assignees, shall be sentenced to between six months and two years' imprisonment or to a fine for a period of between six and twenty-four months.' 2. Member States shall take the necessary measures to ensure that providers of protected services whose interests are affected by an infringing activity as specified in Article 4, carried out on their territory, have access to appropri- ate remedies, including bringing an action for damages and obtaining an injunction or other preventive measure, 11. Second, the Spanish Government cites and where appropriate, applying for Article 248(2) of the Criminal Code, pur- disposal outside commercial channels suant to which 'anyone who, for profit and of illicit devices.' using a computer or similar device, under-

— Using any other illegal means.' 16. The Spanish Government maintains that Article 1902 of the Civil Code applies, because there are no special rules governing civil liability in this field. That general provision may be invoked in relation to Shall be sentenced to a fine for a period of users who fraudulently use services consist- between three and twelve months. If the ing of conditional access, or persons who amount is lower than ESP 50 000, such design or makes available on the net, conduct is classified as a minor offence and computer software aimed at circumventing punished under Article 623(4) of the the technological measures intended to Criminal Code. protect services from unauthorised use.

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OPINION OF MR GEELHOED — CASE C-58/02

23. In support of that argument, the Span- services consisting of conditional access but ish Government puts forward, by way of rather at protecting the right of the pro- example, a judgment of the Juzgado de lo viders of those services to receive appropri- Penal (Criminal Court), Cordoba (Spain), ate remuneration in return for the services. of 11 February 2002. The Spanish Govern- ment states that in that judgment, the distribution of 'pirated cards', to the detri- ment of Canal Satélite Digital, S.L., was found to constitute fraud and an infringe- ment of intellectual property rights. The 26. As concerns the offence of fraud, the Spanish Government states that the perpe- Commission states that the presumption trator was sentenced to a term of imprison- behind Article 248(2) of the Criminal Code ment and a fine, and was ordered to pay is that there must be a transfer of an asset compensation to Canal Satélite Digital, S.L. without consent and to the detriment of a The Spanish Government argues that that third party, whereas the types of conduct judgment shows that the legislation in force referred to in Article 4 of the Directive are provides for adequate sanctions to be broader in scope. Under Article 4 of the imposed in respect of the types of conduct Directive, it is not necessary for there to be classified as offences under the Directive. a transfer of an asset. Article 255 of the Criminal Code applies to fraud for personal gain, whereas the infringements set out in Article 4 of the Directive are commercial in nature.

over, Article 255 of the Criminal Code is Article 4 of the Directive relating to not restricted to fraud for personal gain. In other types of conduct have been trans- that connection, the Spanish Government posed into national law; cites a judgment delivered by a criminal court in Barcelona. Finally, the Spanish Government acknowledges that Article 270 of the Criminal Code differs from the Directive in that it protects intellectual — the judgment was delivered by a lower property, but goes on to point out that, court. notwithstanding, the protection of intellec- tual property contributes to the achiev- ement of the aim pursued by the Directive. The Spanish Government takes the view that many of the types of conduct pro- 30. In that connection, the Commission hibited by the Directive actually constitute cites Article 1 of the Spanish Civil Code, infringements of intellectual property which refers to the sources of law. The rights. In regard to Article 248(2) of the sources of the Spanish legal system are Criminal Code, the Spanish Government statute, custom and the general principles argues that the types of conduct prohibited of law. Article 1(6) of the Civil Code under Article 4 of the Directive always provides that the legal system is to be involve the transfer of an asset. supplemented by the settled case-law of the Tribunal Supremo (Supreme Court) (Spain). According to the Commission, under Spanish law, an isolated judgment delivered by a criminal court cannot be regarded as case-law, from which it follows 29. Next, I shall consider the position of that it cannot be relied upon in support of a the Commission with regard to the judg- particular interpretation of the law. ment of the Juzgado de lo Penal, Cordoba. According to the Commission that judg- ment cannot be relied on in support of the arguments put forward by the Spanish Government. The Commission lists three 31. In the rejoinder, the Spanish Govern- reasons for that: ment also adduces another judgment, which was delivered by a criminal court in Barcelona. In that judgment, it was held that the sale to third parties of illegal cards for decoding the signal of a cable television — it is an isolated judgment; operator without authorisation amounted to fraud.

IV — Analysis 36. Nor is it sufficient that the national legislation should be generally compatible 33. The central issue raised in these pro- with the directive; rather, there must be ceedings concerns the circumstances in clear and precise conformity between which a Member State may rely on current national law and the directive, particularly legislation, as interpreted by national where the directive grants rights to individ- courts, in order not to adopt a formal uals. Where, like Article 4 of Directive implementing act. 98/84/EC, a provision of a directive pro- hibits certain types of conduct, the Member States must provide for appropriate sanc- tions to be imposed in respect of each type of conduct referred to in that directive. 34. In its case-law, the Court has laid down strict requirements relating to the trans- position into national law of provisions of directives which grant rights to individuals, or which — like Article 4 of the Direc- tive — impose obligations on individuals. In those circumstances, the Court regards 37. I shall now consider the role of the the principle of legal certainty as para- national courts. As I stated in my recent mount. Opinion in Commission v Italy, 4national courts play a vital role in ensuring that Community law is implemented in national legal systems. In particular, the interpre- tation of national law given by national 35. Although Article 249 EC permits courts must be as consistent as possible Member States to choose the form and with the relevant provisions of Community methods of giving effect to directives, the Court has held that this will generally require a formal implementing act which, 3 — Case C-144/99 [2001] ECR I-3J41, point 16. 4 — Case C-129/00 [2003] ECR I-14637, I-14640, point 57 et in many instances, amends the national seq.

40. There is a possible conflict between the 38. The question which arises concerns the obligation of national courts to interpret circumstances in which an interpretation national law in a manner which is con- that is compatible with a directive can sistent with the relevant directive and the rectify shortcomings in national legislation. principle of legality. As a result of the In my view, three separate aspects of that principle of legality, which has the status of question must be examined in order to a fundamental right, there is often less provide an answer. The first aspect relates latitude to interpret provisions of criminal to national legislation: does national legis- law in a manner which is compatible with lation in force permit an interpretation the directive concerned. Nevertheless, to which is compatible with the directive? my mind, it is excessive to claim that the The second aspect concerns the subject- principle of legality invariably precludes an matter of the relevant provision of the interpretation which is consistent with a directive: does that provision permit an directive. Social or technical developments interpretation which is compatible with the might mean that types of conduct which directive, or does such interpretation not did not exist previously now fall within the provide sufficient legal certainty to those to scope of a current provision of criminal whom it is addressed? The third aspect law. It is for the national court to interpret refers to the manner in which national provisions of criminal law with such deve- courts apply the directive: do national lopments in mind. That task does not courts apply the directive consistently? change where a development is the result of provisions of international or Commu- nity law which have been adopted in the interim. However, irrespective of such developments, criminal courts have a duty to give a literal interpretation of criminal provisions in all cases. The principle of 39. I shall begin by examining the first legality does not permit a broader inter- aspect. The Spanish Government lists a pretation. number of provisions of the Criminal Code which, in its opinion, adequately give effect to Article 4 of the Directive. In that connection, the Commission cites the prin- ciple of legality laid down in the Spanish Criminal Code. In my view, the Commis- 41. In short, national courts interpret sion is right to invoke that principle, which provisions of criminal law on the basis of is also enshrined in Article 7 of the the principle of legality. However, that European Convention on Human Rights principle does not preclude national courts

from taking into consideration the provi- declared that, 'even where the settled case- sions of Community directives. Neverthe- law of a Member State interprets the less, they remain within boundaries set for provisions of national law in a manner them by the principle of legality. deemed to satisfy the requirements of a directive, that cannot achieve the clarity and precision needed to meet the require- ment of legal certainty.' The Court made that statement in connection with private law rules on consumer protection. If the 42. As I have already indicated, the second Court took the view that more clear and aspect of the question relates to the subject- precise national provisions were necessary matter of the provision of the directive in the field of private law, that criterion is concerned. The Court has invoked the all the more important in the field of principle of legality in its case-law, par- criminal law. I refer once more to the ticularly in relation to provisions of direc- principle of legality. tives which grant rights to individuals. According to settled case-law, it is essential that the legal situation resulting from national implementing measures be suffi- ciently precise and clear and that individ- uals be made fully aware of their rights so that, where appropriate, they may rely on them before the national courts. 5To my mind, that position does not change where, instead of granting rights to individuals, a 44. I shall now examine the third aspect. provision of a directive prohibits certain The Spanish Government cites two judg- types of conduct. That is the essence of ments delivered by Spanish criminal courts, criminal law. It is precisely where breach of and claims that it follows from those a prohibition on certain types of conduct judgments that the Directive has been leads to the imposition of sanctions that implemented in Spain. In my Opinion in individuals must be able to ascertain clearly Commission v Italy, 7I listed three criteria from national legislation which acts they for determining whether national case-law must refrain from committing. Naturally, which is not compatible with a directive that also follows from the principle of constitutes an infringement of the EC legality. Treaty by a Member State. Those criteria are:

48. In my opinion, it is clear that the current Spanish legislation does not suffi- 46. First of all, as concerns the status of ciently meet the requirements of Article 4 judgments, the general rule should be that and Article 5(1) of the Directive. That the judgments of higher national courts finding is not altered by the two criminal provide guidance to the lower courts. That court judgments referred to by the Spanish statement does not apply to the judgments Government. of lower courts in relation to higher courts. Second, as regards the structural nature of national case-law: is this an isolated case or does it reflect a trend in the case-law. I do not regard that criterion as a requirement that there must already be a number of judgments in a case such as this one, which concerns a provision of a relatively new 49. It is not apparent from the national directive which has not yet given rise to legislation relied on that sanctions are much case-law. However, there must be imposed in the Kingdom of Spain in respect more than one judgment, particularly of all the types of conduct referred to in the where the judgment concerned was not Directive. In that connection, I refer to the delivered by the highest-ranking court. provisions of Article 4 of the Directive. In Third and most important, as I pointed any event, the Spanish legislation does not out in my Opinion in Commission v Italy, prohibit the possession of illicit devices is the effect of the judgments concerned on (Article 4(a)) or the promotion of illicit achieving the aim pursued by the Commu- devices (Article 4(c)). Moreover, as the

— The Spanish Government puts forward only two judgments of lower courts. Since, as was pointed out above, those judgments are limited in scope, they do not have the sufficient effect to ensure 51. Next, I shall examine the issue of an that the aim of the Directive is interpretation which is consistent with the achieved. The judgments concerned Directive. In my view, there is no doubt relate exclusively to acts already pro- that such an interpretation would not hibited under the Spanish Criminal rectify the abovementioned infringement. Code.

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V — Conclusion

53. In the light of the foregoing considerations, I propose that the Court of Justice should:

(1) Declare that, by failing to adopt and to communicate to the Commission the laws, regulations and administrative provisions necessary to implement Articles 4 and 5 of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access, the Kingdom of Spain has failed to fulfil its obligations under that directive.