27.1.2020

Official Journal of the European Union

C 27/19

(Case C-785/19)

(2020/C 27/25)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Koch Media GmbH

Defendant: HC

Questions referred

a) Is Article 14 of the Enforcement Directive (1) to be interpreted as meaning that the provision covers necessary lawyers’ fees as ‘legal costs’ or as ‘other expenses’ incurred by a holder of intellectual property rights within the meaning of Article 2 of the Enforcement Directive by virtue of the fact that he asserts, out of court, a right to apply for a prohibitory injunction against an infringer of those rights by way of a warning notice?

b) In the event that 1a) is answered in the negative: Is Article 13 of the Enforcement Directive to be interpreted as meaning that the provision covers the lawyers’ fees referred to in 1a) in the form of damages?

a) Is EU law, particularly with regard to

— Articles 3, 13 and 14 of the Enforcement Directive,

— Article 8 of the Copyright Directive (2), and

— Article 7 of the Computer Program Directive

to be interpreted as meaning that a holder of intellectual property rights within the meaning of Article 2 of the Enforcement Directive (3) is in principle entitled to reimbursement of the full amount of the lawyers’ fees referred to in 1a), or at least a reasonable and substantial proportion of those fees, even if

the alleged infringement has been committed by a natural person outside his trade or profession, and

a national provision provides, for such a case, that such lawyers’ fees are generally recoverable only after the value in dispute has been reduced?

b) In the event that Question 2a) is answered in the affirmative: Is the EU law referred to in Question 2a) to be interpreted as meaning that an exception to the principle referred to in 2a), according to which the rightholder must be reimbursed the full amount of the lawyers’ fees referred to in 1a), or at least a reasonable and substantial proportion of those fees,

taking account of other factors (such as, for instance, how current the work is, the period of publication and the infringement by a natural person outside the interests of his trade or profession)

is to be considered

even if the infringement of intellectual property rights within the meaning of Article 2 of the Enforcement Directive consists in file sharing, that is to say making a work available to the public by offering it for free download to all users on a freely accessible exchange platform that has no digital rights management?

(1) OJ 2004, L 157, p. 45.

(2) OJ 2001, L 167, p. 10.

(3) OJ 2009, L 111, p. 16.

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