18.8.2012

Official Journal of the European Union

C 250/3

(Case C-5/11)(1)

(Free movement of goods - Industrial and commercial property - Sale of reproductions of works in a Member State in which the copyright on those works is not protected - Transport of those goods to another Member State in which the infringement of the copyright is sanctioned under criminal law - Criminal proceedings against the transporter for aiding and abetting the unlawful distribution of a work protected by copyright law)

2012/C 250/05

Language of the case: German

Referring court

Party in the main proceedings

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Articles 34 and 36 TFEU — Free movement of goods — Industrial and commercial property — Sale of reproductions of works in a Member State in which the copyright on those works is not protected — Transport of those goods to another Member State in which the infringement of the copyright is sanctioned under criminal law — Situation in which the transfer of property to the purchaser was made in the Member State of origin and the transfer of the de facto power of disposal takes place in the State of destination — Criminal proceedings against the transporter for aiding and abetting the unlawful distribution of a work protected by copyright law

Operative part of the judgment

A trader who directs his advertising at members of the public residing in a given Member State and creates or makes available to them a specific delivery system and payment method, or allows a third party to do so, thereby enabling those members of the public to receive delivery of copies of works protected by copyright in that same Member State, makes, in the Member State where the delivery takes place, a ‘distribution to the public’ under Article 4(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

Articles 34 TFEU and 36 TFEU must be interpreted as meaning that they do not preclude a Member State from bringing a prosecution under national criminal law for the offence of aiding and abetting the prohibited distribution of copyright-protected works where such works are distributed to the public on the territory of that Member State in the context of a sale, aimed specifically at the public of that State, concluded in another Member State where those works are not protected by copyright or the protection conferred on them is not enforceable as against third parties.

(1) Language of the case: German.

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ECLI:EU:C:2012:250