Case C‑367/15

Stowarzyszenie ‘Oławska Telewizja Kablowa’

v

Stowarzyszenie Filmowców Polskich

(Request for a preliminary ruling from the Sąd Najwyższy)

(Reference for a preliminary ruling — Directive 2004/48/EC — Article 13 —Intellectual and industrial property — Infringement — Calculation of damages — Legislation of a Member State — Twice the amount of the royalties normally due)

Summary — Judgment of the Court (Fifth Chamber), 25 January 2017

Approximation of laws — Enforcement of intellectual property rights — Directive 2004/48 — Measures, procedures and remedies — Award of damages — National legislation providing for payment, without proof of the loss actually suffered, of a sum corresponding to twice the appropriate fee which would have been due if permission had been given for the work concerned to be used — Lawfulness

(European Parliament and Council Directive 2004/48, recital 26 and Art. 13(1)(b))

Article 13 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which the holder of an intellectual property right that has been infringed may demand from the person who has infringed that right either compensation for the damage that he has suffered, taking account of all the appropriate aspects of the particular case, or, without him having to prove the actual loss, payment of a sum corresponding to twice the appropriate fee which would have been due if permission had been given for the work concerned to be used.

That interpretation cannot be called into question by the fact, first, that compensation calculated on the basis of twice the amount of the hypothetical royalty is not precisely proportional to the loss actually suffered by the injured party. That characteristic is inherent in any lump-sum compensation, like that expressly provided for in Article 13(1)(b) of Directive 2004/48.

Nor, secondly, is that interpretation called into question by the fact that Directive 2004/48, as is apparent from recital 26, does not have the aim of introducing an obligation to provide for punitive damages. Contrary to the view that the referring court appears to take, the fact that Directive 2004/48 does not entail an obligation on the Member States to provide for ‘punitive’ damages cannot be interpreted as a prohibition on introducing such a measure. In addition, without there being any need to rule on whether or not the introduction of ‘punitive’ damages would be contrary to Article 13 of Directive 2004/48, it is not evident that the provision applicable in the main proceedings entails an obligation to pay such damages.

Thirdly and finally, as regards the argument that, inasmuch as the injured party could calculate the damages on the basis of twice the amount of the hypothetical royalty, he would no longer have to prove the causal link between the event giving rise to the copyright infringement and the loss suffered, it must be stated that that argument is based on an excessively strict interpretation of the concept of ‘causality’, under which the holder of the infringed right should establish a causal link between that event and not only the loss suffered but also its precise amount. Such an interpretation is irreconcilable with the very idea of setting damages as a lump sum and, therefore, with Article 13(1)(b) of Directive 2004/48, which permits that type of compensation.

(see points 26-29, 32, 33, operative part)