This weblog has already visited Luxembourg once today, to pick up breaking news of the Huawei-ZTE ruling, and now it's back there again: the excuse? The Court of Justice of the European Union (Fourth Chamber) gave judgment today in Case C-580/13 Coty Germany GmbH v Stadtsparkasse Magdeburg, an October 2013 reference for a preliminary ruling from the German Bundesgerichtshof.
Intellectual Property Enforcement Directive 2004/48 had to say on the subject.
Coty then appealed to the Bundesgerichtshof which, entertaining doubts as the interpretation to be given to Directive 2004/48, decided to stay the proceedings and ask the Court of Justice:
‘Must Article 8(3)(e) of Directive 2004/48 be interpreted as precluding a national provision which, in a case such as that in the main proceedings, allows a banking institution to refuse, by invoking banking secrecy, to provide information pursuant to Article 8(1)(c) of that directive concerning the name and address of an account holder?’Admissibility
|Some like it Hot!|
The actual question
In principle, EU law requires that, when implementing directives into national law, Member States must take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the EU legal order. Here, German law allowed a banking institution to invoke banking secrecy [itself being a fundamental right] in order to refuse to provide information concerning the name and address of an account holder, while Directive 2004/48 imposed on Member States an obligation to ensure that information about unlawful activities can be obtained by means of measures of enquiry ordered by a court.
Taken by itself, if the German banking law allowed an unlimited refusal to supply the information requested, since its wording did not contain any condition or qualification, this would frustrate the right to information recognised in Directive 2004/48 and was therefore such as to infringe the fundamental right to an effective remedy for intellectual property infringement. However, it was for the referring court to determine whether there were, under German law, any other means or remedies which would allow the competent judicial authorities to order that the necessary information be provided. Accordingly, the Court ruled:
Article 8(3)(e) of Directive 2004/48 ... must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which allows, in an unlimited and unconditional manner, a banking institution to invoke banking secrecy in order to refuse to provide ... information concerning the name and address of an account holder.Says the IPKat, apart from the fact that it's good news for hard-pressed brand owners who have enough trouble finding sources of fake products without also having to watch real and alleged infringers hide behind bankers' apron-strings, the decision is also common sense since it allows national courts the freedom to achieve the right balance between respect for privacy and secrecy on one hand and the disclosure of information necessary for the pursuit of justice on the other hand.
Cats and hot water here, here and here