Tod’s SpA and Tod’s France SARL

(Reference for a preliminary ruling from the Tribunal de grande instance de Paris)

(Equal treatment – Principle of non-discrimination on grounds of nationality – Copyright and related rights)

Judgment of the Court (Second Chamber), 30 June 2005

Summary of the Judgment

1. Community law — Principles — Equal treatment — Discrimination on grounds of nationality — Prohibited — Scope — Copyright and related rights — Included

(Art. 12 EC)

(Art. 12 EC)

1. Copyright and related rights, which by reason in particular of their effects on intra-Community trade in goods and services fall within the scope of application of the EC Treaty, are necessarily subject to the general principle of non-discrimination laid down by the first paragraph of Article 12 EC.

(see para. 18)

(see para. 36, operative part)

30 June 2005 (*)

(Equal treatment – Principle of non-discrimination on grounds of nationality – Copyright and related rights)

In Case C-28/04,

REFERENCE for a preliminary ruling under Article 234 EC from the Tribunal de grande instance de Paris (France), made by decision of 5 December 2003, received at the Court on 28 January 2004, in the proceedings

Tod’s SpA,

Tod’s France SARL

Heyraud SA,

intervener:

Technisynthèse,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, R. Silva de Lapuerta, R. Schintgen, P. Kūris and G. Arestis, Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Tod’s SpA and Tod’s France SARL, by C. de Haas, avocat,

– Heyraud SA and Technisynthèse, by C. Menage, avocat,

– the French Government, by G. de Bergues and A. Bodard-Hermant, acting as Agents,

– the Italian Government, by I.M. Braguglia, acting as Agent, assisted by P. Gentili, avvocato dello Stato,

– the Commission of the European Communities, by K. Banks, acting as Agent,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1 The reference for a preliminary ruling concerns the interpretation of Article 12 EC.

2 That reference was made in proceedings between Tod’s SpA (‘Tod’s’) and Tod’s France SARL (‘Tod’s France’), claimants in the main proceedings, and Heyraud SA (‘Heyraud’), defendant in the main proceedings, and Technisynthèse, intervener in the main proceedings, concerning an action for infringement of registered designs of shoes.

Legal context

European Union law

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4 Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

5 Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

20It is apparent from the order for reference that application, in the national law of a Member State, of Article 2(7) of the Berne Convention leads to a distinction based on the criterion of the country of origin of the work. In particular, the effect of such application is that no advantageous treatment, namely the enjoyment of twofold protection based, firstly, on the law relating to designs and, secondly, on the law of copyright, will be granted to the author of a work the country of origin of which is another Member State which affords that work only protection under the law relating to designs. By contrast, the abovementioned advantageous treatment is granted, in particular, to authors of a work the country of origin of which is the first Member State.

21It is therefore necessary to examine whether, by adopting a distinguishing criterion based on the country of origin of the work, the application of rules such as those at issue in the main proceedings may constitute indirect discrimination by reason of nationality within the meaning of the case‑law cited in paragraph 19 of the present judgment.

22Heyraud and Technisynthèse, as well as the French Government, argue that that is not the case. The latter maintains, in particular, that, in view of the high mobility of designers and their successors in title in the field of the applied arts, the place of first publication of a design does not necessarily coincide with the nationality of its author and that, more often than not, the two do not coincide. It follows that the application of Article 2(7) of the Berne Convention does not substantially, or in the great majority of cases, operate to the detriment of nationals of other Member States and that that provision does not, therefore, give rise to indirect discrimination.

23However, that argument cannot be accepted.

24The existence of a link between the country of origin of a work within the meaning of the Berne Convention, on the one hand, and the nationality of the author of that work, on the other, cannot be denied.

25In the case of unpublished works, that link is not in any doubt since it is expressly provided for in Article 5(4)(c) of the Berne Convention.

26As regards published works, the country of origin is essentially, as Article 5(4)(a) of that convention indicates, the country where the work was first published. The author of a work first published in a Member State will, in the majority of cases, be a national of that State, whereas the author of a work published in another Member State will generally be a person who is not a national of the first Member State.

27It follows that the application of rules such as those at issue in the main proceedings is liable to operate mainly to the detriment of nationals of other Member States and thus give rise to indirect discrimination on grounds of nationality (see, to that effect, Case C-279/93 Schumacker [1995] ECR I‑225, paragraphs 28 and 29, and Pastoors and Trans-Cap, cited above, paragraph 17).

28However, that finding is not sufficient under the Court’s case-law to justify the conclusion that the rules at issue are incompatible with Article 12 EC. For that it would also be necessary for the application of those rules not to be justified by objective circumstances (see, to that effect, Case C-398/92 Mund & Fester [1994] ECR I‑467, paragraphs 16 and 17, and Pastoors and Trans-Cap, paragraph 19).

29The French Government is of the opinion that Article 2(7) of the Berne Convention is in any event justified by a legitimate objective and that it is appropriate and necessary for the achievement of that objective.

30It argues that the purpose of the Berne Convention is the protection of literary and artistic works and that Article 2(7) and Article 5(4) of that convention specify the conditions under which such works are to be protected by copyright on the basis of an objective criterion based on the law applicable to the classification of the work. In its view, where a design cannot aspire to classification as an artistic work in the country where it was first published, it is not entitled to such protection in the States party to the Berne Convention since it does not exist as an artistic work. Article 2(7) thus concerns not the detailed rules for the exercise of copyright, but the law applicable to the artistic classification of the work.

31However, those considerations do not lead to the conclusion that there are objective circumstances capable of justifying the application of rules such as those at issue in the main proceedings.

32As is apparent from Article 5(1) of the Berne Convention, the purpose of that convention is not to determine the applicable law on the protection of literary and artistic works, but to establish, as a general rule, a system of national treatment of the rights appertaining to such works.

33Article 2(7) of that convention contains, for its part, as the Commission rightly observes, a rule of reciprocity under which a country of the Union grants national treatment, that is to say, twofold protection, only if the country of origin of the work also does so.

34It should be recalled that it is settled case-law that implementation of the obligations imposed on Member States by the Treaty or secondary legislation cannot be made subject to a condition of reciprocity (Case C-405/01 Colegio de Oficiales de la Marina Mercante Española [2003] ECR I-10391, paragraph 61 and the case‑law cited).

35Since no other objective circumstance capable of justifying rules such as those at issue in the main proceedings has been relied on, those rules must be considered to constitute indirect discrimination on grounds of nationality prohibited by Article 12 EC.

36The answer to the question referred must therefore be that Article 12 EC, which lays down the general principle of non‑discrimination on grounds of nationality, must be interpreted as meaning that the right of an author to claim in a Member State the copyright protection afforded by the law of that State may not be subject to a distinguishing criterion based on the country of origin of the work.

Costs

37Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

Article 12 EC, which lays down the general principle of non‑discrimination on grounds of nationality, must be interpreted as meaning that the right of an author to claim in a Member State the copyright protection afforded by the law of that State may not be subject to a distinguishing criterion based on the country of origin of the work.

[Signatures]

* * *

(*1) Language of the case: French.