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C-466/12 Svensson and others – Information society – Harmonisation of certain aspects of copyright and related rights – Communication to the public – Internet links (‘clickable links’) giving access to protected works

The owner of a website may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site. The provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’. Where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication. Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public.

Such a finding cannot be called in question when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site. The position would be different however in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict access to that work to the latter site’s subscribers only, since that situation, the users would have been taken into account as potential public by the copyright holders when they authorised the initial communication.

This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation. Member State are precluded from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

Cases T-91/11 InnoLux Corp. v European Commission and T-128/11 LG Display and LG Display Taiwan v Commission

The General Court reduced fines imposed on Innolux to 288 million EUR (from 300 million EUR) and LG Display to 210 million EUR (from 215 million EUR) for their participation in the cartel on the market for LCD panels.

Innolux had made errors when it provided the Commission with the data necessary for calculating the value of relevant sales in that it had included sales relating to products other than the LCD panels subject to the cartel. The Commission confirmed before the Court that those products should not have been included in the calculation. The errors arose because Innolux had not explained the specifications of certain LCD panels to the external specialist consultants that it had chosen to compile the data to be provided to the Commission. As a result, the value of sales used by the Commission in setting the fine was too high. Accordingly, the Court, in the exercise of its unlimited jurisdiction, considers it appropriate to calculate the fine on the basis of the lower, corrected, sales value, even though Innolux was negligent when it provided the Commission with inaccurate data. That failure to act with due care does not give grounds for concluding that Innolux’s breach of its obligation to cooperate was such that it must be taken into account, to the detriment of Innolux, when the fine is set. Applying the same method as that used by the Commission in the decision, the recalculated fine amounts to 288 million EUR instead of 300 million EUR.

As regards LG Display, the Commission made only one error in setting the fine in that it took the month of January 2006 into account when calculating the average value of sales. As the Commission had, under the Leniency Notice, granted LG Display partial immunity in respect of January 2006 for having provided information relating to the cartel, that period should have been excluded from every stage of the calculation of the fine. Thus, if January 2006 is excluded not only from the multiplier for the duration of the infringement, but also from the calculation of the average value of relevant sales, the fine imposed on LG Display must be reduced from 215 million EUR to 210 million EUR.

Commission decision declaring an aid scheme unlawful and incompatible with the internal market – Quantification of the amount of aid to be recovered – Taking into consideration by the national court of the positions of the Commission in the enforcement of its decision.

In case C 69/13 Mediaset SpA, the request for a preliminary ruling concerned the interpretation of the relevant provisions of the European Union law on State aid. The request has been made in proceedings between Mediaset SpA (‘Mediaset’) and the Ministry for Economic Development concerning the recovery of the State aid which the Italian Republic granted to Mediaset as part of an aid scheme for digital terrestrial broadcasters offering pay-TV services and cable pay-TV operators, declared incompatible with the internal market by Commission Decision implemented by the Italian Republic for the subsidised purchase of digital decoders.

The Court of Justice of the European Union ruled that the national court is bound by a European Commission decision declaring an aid scheme unlawful and incompatible with the internal market and ordering the recovery of the aid in question. Under the principle of cooperation in good faith, the national court must take the statements of position into account as a factor in the assessment of the dispute before it but is not, however, bound by the positions adopted by European Commission in the execution of that decision. Where the European Commission in its decision declaring an aid scheme unlawful and incompatible with the internal market, has not identified the individual recipients of the aid in question or determined the precise amounts to be repaid, the national court, may conclude that the amount of aid to be repaid is equal to zero where that follows from the calculations made on the basis of all the relevant information of which it has been made aware, without calling into question the validity of the European Commission’s decision or the obligation to repay the aid in question.

C 133/12 P Stichting Woonlinie and Others v Commission Appeal – State aid – Conditions governing admissibility – Interest in bringing proceedings – Beneficiaries who are individually and directly concerned – Notion of a ‘closed circle’

The Court of Justice of the European Union in case C 133/12 P Stichting Woonlinie and Others v Commission set aside the order of the General Court of the European Union in so far as it declared inadmissible the action brought by Stichting Woonlinie and others for annulment of Commission Decision relating to State aid. The Court declared the action for annulment to be admissible and referred the case back to the General Court of the European Union for a decision on the merits concerning the action for annulment. The number and identity of appellants was precisely determined at the time when the contested decision was adopted. Appellants belonged to a closed circle of operators, a fact which distinguished them individually in relation to that decision, in so far as it concerned aid measure. The action for annulment brought by the appellants before the General Court was declared admissible, to the extent to which, first, they had an interest in bringing proceedings against the contested decision and, secondly, they were individually and directly concerned by the contested decision in so far as it related to aid measure.

C 110/13 HaTeFo – Definition of micro, small and medium-sized enterprises – Types of enterprises taken into consideration in calculating staff numbers and financial amounts – Linked enterprises – Notion of ‘group of natural persons acting jointly’

The request for a preliminary ruling in case C 110/13 HaTeFo concerned the interpretation of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises. The Court of Justice of the European Union ruled that enterprises may be regarded as ‘linked’ where it is clear from the analysis of the legal and economic relations between them that, through a natural person or a group of natural persons acting jointly, they constitute a single economic unit, even though they do not formally have any of the relationships. Natural persons who work together in order to exercise an influence over the commercial decisions of the enterprises concerned which precludes those enterprises from being regarded as economically independent from each other are to be regarded as acting jointly. Whether that condition is satisfied depends on the circumstances of the case and is not necessarily conditional on the existence of contractual relations between those persons or a finding that they intended to circumvent the definition of a micro, small or medium-sized enterprise within the meaning of that recommendation.