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Tuesday, 1 February 2005

A SAD AFFAIRE


Here's one the IPKat missed last week: a ruling in Case C-59/04 Commission des Communautés européennes v République française to the effect that France has failed to implement la directive 2001/29/CE du Parlement européen et du Conseil, du 22 mai 2001, sur l'harmonisation de certains aspects du droit d'auteur et des droits voisins dans la société de l'information (the Directive on copyright, neighbouring rights and the information society). The offending bits seem to be Articles 5(1), 6 and 7 of the Directive. Sadly, the decision is only in French. The IPKat rages at the lack of translations into English and other official languages of the European Union. Merpel wonders, is French-only a deliberate ploy to spare the blushes of the French government?

Is the ECJ seeking to hide French blushes?

1 comment:

Anonymous said...

Using the wonders of Altavista’s Babelfish, here is a literal translation. Some amusing literal translations, but I think you might be able get the general picture:


1. By its request, Commission of the European Communities asks the Court to note that, while not taking or, in any event, by not communicating the legislation, regulations and administrative provisions necessary to him to conform to directive 2001/29/CE of the European Parliament and the Council, of May 22, 2001, on the harmonization of certain aspects of the royalty and the rights close in the company to information (OJ L 167, p. 10), the French Republic missed with the obligations which fall on to him under the terms of this directive

2. According to article 13, paragraph 1, directive 2001/29, the Member States into force put the legislation, regulations and administrative provisions necessary to conform to this one at the latest on December 22, 2002. They must inform the Commission immediately of it.

3. The French Republic did not inform the Commission of measurements taken to conform to the aforementioned directive within the time prescribed. The Commission, not having either other elements allowing him to conclude that the provisions necessary had been adopted, initiated the procedure in failure envisaged in article 226 EC.

4. By letter of setting in residence of January 23, 2003, the Commission invited this Member State to present its observations within two month as from the reception of this letter. The latter remained unanswered official.

5. July 11, 2003, the Commission gave a reasoned opinion inviting the aforementioned Member State to take measurements necessary to conform to it within two month as from its notification.

6. The French Republic indicated, in its response from September 12, 2003 to this opinion, that the provisions of directive 2001/29 were already integrated in the French code of the intellectual property except for article 5, paragraph 1, and of articles 6 and 7 of the aforementioned directive, for which measurements necessary to their transposition were being prepared. December 2, 2003, this Member State informed the Commission which a bill had been filed in at the French Parliament.

7. Not having received any other information of the aforesaid Member State and not having elements enabling him to conclude that the measures necessary to conform to the aforementioned directive had been adopted, the Commission decided to bring this action.

On the failure:

8. The Commission supports that, by not adopting the measures necessary to conform to directive 2001/29 or, in any event, while not having communicated them to him, the French Republic missed with the obligations which fall on to him under the terms of the relevant provisions of this directive.

9. The French government supports that the French code of the intellectual property integrates an already number of provisions of the aforementioned directive and that only article 5, paragraph 1, and articles 6 and 7 of this directive must be transposed in the national law. It makes the point that the legislative process of transposition of these articles in the legal order interns is in hand. It concludes from it that the recourse, as it carries on the provisions of the directive other than article 5, paragraph 1, and articles 6 and 7, must be rejected like nonfounded.

10. In this respect, it is necessary to recall that, within the framework of a procedure in failure engaged under the terms of article 226 EC, it falls on the Commission to establish the existence of the pled failure and to bring to the Court the elements necessary to the checking by this one of the existence of this failure (see, in particular, stops of May 15, 2003, Commission/Espagne, C-419/01, Rec. p. I-4947, point 26, and of July 15, 2004, Commission/France, C-419/03, not published with the Collection, point 7).

11. Thus, in this recourse, it falls on the Commission to bring the proof that the provisions of the French right called upon by the government of this Member State as measurements of transposition of the articles of the directive 2001/29 others that article 5, paragraph 1, and articles 6 and 7, would not constitute such a transposition. However, the Commission does not have advanced any argumentation on this point.

12. Consequently, the recourse must be rejected in so far as it aims at the provisions of the directive 2001/29 others that article 5, paragraph 1, and articles 6 and 7 of the aforementioned directive.

13. Concerning article 5, paragraph 1, and articles 6 and 7 of directive 2001/29, the French government recognizes that the legislative provisions necessary to conform to it were still not adopted

14. However, it results from a constant jurisprudence that the existence of a failure must be appreciated according to the situation of the Member State such as it was presented at the end of the time allowed by the opinion reasoned (see, in particular, stop of June 12, 2003, Commission/Espagne, C-446/01, Rec. p. I-6053, point 15

15. Since it is constant that, in the species, the provisions necessary to conform to article 5, paragraph 1, and in articles 6 and 7 of the directive were not adopted with the expiry of the period fixed in the reasoned opinion, it is necessary to regard as founded, within this limit, the action brought by the Commission.

16. Consequently, it is advisable to note that, by not taking the legislation, regulations and administrative provisions necessary to conform to article 5, paragraph 1, and in articles 6 and 7 of directive 2001/29, the French Republic missed with the obligations which fall on to him under the terms of this directive

On the costs:

17. Under article 69, paragraph 2, rules of procedure, very part which succumbs is condemned at the expense, if it is concluded in this direction. However, according to article 69, paragraph 3, first subparagraph, of the same payment, the Court can distribute the costs or decide that each part supports its own costs if the parts succumb respectively on one or more chiefs. In the species, each part having partially succumbed in its means, it is necessary to decide that each one supports its own costs.

By these reasons, the Court (sixth room) declares and adopts:

1) By not taking the legistation, regulations and administrative provisions necessary to conform to article 5, paragraph 1, and in articles 6 and 7 of directive 2001/29/CE of the European Parliament and the Council, of May 22, 2001, on the harmonization of certain aspects of the royalty and the rights close in the company to information, the French Republic missed with the obligations which fall on to him under the terms of this directive.

2) The recourse is rejected for the surplus.

3) Each party supports its costs.

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