C-61/05

Commission of the European Communities v the Portuguese Republic

An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 10 February 2005 by the Commission of the European Communities.

The Commission of the European Communities claims that the Court should:

declare that the Portuguese Republic, by creating in Portuguese law a rental right in favour of producers of video-grams, ha failed to fulfil its obligations under Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, and in particular under Article 2(1) thereof;

declare that the Portuguese Republic, by creating in Portuguese law some doubt as to who is responsible for paying the remuneration owed to artists on terminations of the rental right, has failed to fulfil its obligations under Directive 92/100/EEC, in particular under Article 4 in conjunction with Article 2(5) and (7) thereof;

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Commission submits that by failing to an grant exclusive rental right to the producer of the first fixation of a film, the Portuguese State is in breach of Directive 92/100 since it transposed the provisions of Article 2(1) of the Directive incorrectly.

Moreover, the use of the term ‘producer’ in the Portuguese legislation creates confusion as to who must pay the artists the remuneration to which they are entitled, constituting an incorrect transposition of the directive, in particular Article 2(5) and (7) in conjunction with Article 4 thereof.